Attorneys: Tennessee Supreme Court nudged to reconsider 110-year-old case

Attorneys: Tennessee Supreme Court nudged to reconsider 110-year-old case

November 12th, 2016 by Zack Peterson in Local Regional News

It's stopped the five adopted children of the late Astec Industries CEO J. Don Brock from contesting their father's estate twice now — a 110-year legal decision known as "the Cowan rule."

But thanks to a rare "nudge" by an appeals judge, the Tennessee Supreme Court may take up the 1906 case and reconsider its long-standing precedent, attorneys said Friday.

Since September 2015, the siblings have argued their father's second wife and former secretary, Sammye Brock, teamed up with two other adopted children — Sammye Brock's from a previous marriage — to axe them from a 2013 will. Brock died in March 2015 of mesothelioma.

Last week, the Tennessee Court of Appeals in Knoxville agreed with a local court that upheld J. Don Brock's will — albeit grudgingly, said Marya Schalk, one of the attorneys representing the siblings.

"It seems like the court had a problem reaching the decision it reached because of Cowan," Schalk said.

So what is Cowan?

It's a 1906 Tennessee Supreme Court decision saying a descendant left nothing in an earlier, unprobated will has no standing to contest a later will. In English: You can't contest the final will if you weren't left anything in a previous will.

In February, Hamilton County Chancellor Jeffrey Atherton reluctantly dismissed the five siblings' claim for that reason, saying they had no standing to contest the 2013 will because they weren't included in a 2012 draft.

Atherton was "extremely troubled that the status of the Tennessee law in its current form is harsh[,] neither fair nor equitable, and promotes the potential for fraud by simply creating two wills and [having] one insulate the other," court records show.

Schalk and co-counsel Jerry Summers appealed Atherton's ruling, arguing J. Don Brock created numerous wills over the years that cut out the children at different times: Walter Brock in 1994, Darryl Brock in 1998. A 2006 will left Jennifer, Melissa and Krystal Brock $800,000 apiece, but in the 2012 draft and 2013 final will, all five are excluded.

Even though it said Atherton was right, the appeals court also stumbled on Cowan, which was last affirmed in 1966 and since has been applied in several probate contests.

"Tennessee law does not appear to provide a mechanism by which a contestant can challenge multiple prior wills when the contestant is excluded from those wills," Judge Brandon Gibson wrote for the court.

Moreover, Gibson wrote, "the Tennessee Supreme Court is free to re-visit its rulings in Cowan (1906) and Jennings (1966), and we encourage an examination of their practical application."

Penny White, a former Tennessee Supreme Court justice and now a professor at the University of Tennessee College of Law, said the appeals judge cannot force a higher judicial body to act.

"But, it is more rare for lower courts to express a desire for a reviewing court to reconsider policy implications," White wrote in an email Friday.

Schalk said she has 60 days to fill out an appeal to the Tennessee Supreme Court.

Richard Bethea, the attorney representing Brock's estate, said he didn't interpret the appeals court opinion as asking the Supreme Court to review the Cowan rule.

"What they were saying was, there could be situations where the Cowan rule could be used to hide some form of fraud in an estate," Bethea said. "They didn't say this is one such case."

He said there is no right to inherit in Tennessee law. And he said the siblings' claims are based on numerous falsehoods.

"This isn't some draconian measure to protect rich people from doing things they shouldn't do," Bethea said. "The whole purpose of the rule is to prevent someone from filing the will contest and basically trying to shake down the estate, to get money out of an estate, and delay the disposition of the estate through litigation."

Contact staff writer Zack Peterson at or 423-757-6347. Follow on Twitter @zackpeterson918.