MIKE LOCKE AND CVAN AVIAN v. THE ESTATE OF DAVID ROSE / MIKE LOCKE AND CVAN AVIAN v. THE ESTATE OF THOMAS W. SCHLATER, ET AL. - Articles

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Posted by: Tanja Trezise on Jul 1, 2014

Head Comment: With Dissenting Opinion

Court: TN Court of Appeals

Attorneys 1:

Angello L. Huong, Lebanon, Tennessee, for the appellants, Mike Locke and Cvan Avian.

Attorneys 2:

Andra J. Hedrick, Robert J. Hazard, Nashville, Tennessee, for the appellee, Louise R. Herbert, Executor of the Estate of David Rose.

Judge(s): COTTRELL

After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), notpursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred.