Estate of Nancy Elizabeth Miller v. Miller

Filing 17

OPINION AND ORDER granting in part and denying in part 9 Motion to Remand. The Estate's claim for a declaration that Elizabeth's will is void will be remanded to the Circuit Court of Pulaski County, Arkansas. This Court will retain jurisdiction over the remaining claims. Signed by Judge J. Leon Holmes on 10/7/2014. (ks) (Docket text modified on 10/7/2014 to correct the filing event).(jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
ESTATE OF NANCY ELIZABETH MILLER,
Deceased; KATHERINE ANN STANTON and
KAREN ELIZABETH PHILLIPS, as beneficiaries
of the Lou & Liz Miller Joint Revocable Trust
Dated February 16, 2011
v.

PLAINTIFFS

No. 4:14CV00312 JLH

LOUIS T. MILLER, individually and as Trustee
of the Lou & Liz Miller Joint Revocable
Trust Dated February 16, 2011

DEFENDANTS

OPINION AND ORDER
Katherine Ann Stanton and Karen Elizabeth Phillips are the daughters of Nancy Elizabeth
Miller, deceased. They are also co-administrators of her estate. They commenced this action in the
Circuit Court of Pulaski County, Arkansas, seeking a declaration that a power of attorney that the
decedent executed on April 16, 2006, is void ab initio; that a joint trust and will executed on
February 16, 2011, are void ab initio; that a confidential relationship existed between Louis T.
Miller and the decedent; and that Louis breached his fiduciary duties to her. In addition, the
complaint sought recovery for conversion and fraudulent concealment. Louis removed the action
to this Court based on diversity of citizenship. The Estate filed an amended complaint and moved
to remand, arguing that the probate exception to federal jurisdiction precludes this Court from
exercising jurisdiction over its claim for a declaratory judgment that the 2011 will was void ab initio
and that the Court should abstain from exercising jurisdiction over the remaining claims pursuant
to Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47
L. Ed. 2d 483 (1976). For the reasons explained below, the motion to remand is granted in part and
denied in part.

I.
In 1995, the decedent, Elizabeth Miller, married Louis T. Miller. The couple entered into
a prenuptial agreement under which each retained the right to dispose of his or her separate property.
In October 2005, Elizabeth began complaining of memory loss.

She was diagnosed with

Alzheimer’s disease, and her condition progressively deteriorated until December 2011 when she
was hospitalized.

Upon her release, her doctor recommended 24-hour home supervision.

Thereafter, Louis provided Elizabeth with 24-hour home supervision.
Four months later, on April 16, 2009, Elizabeth executed a power of attorney that designated
her husband as her attorney-in-fact. On May 29, 2009, Elizabeth executed a deed by which her
separately-owned residence was sold, and the proceeds were transferred into an account jointly held
by the couple at the Bank of America. On February 16, 2011, Elizabeth and Louis executed a
durable power of attorney, a living will declaration, HIPAA authorizations, a will, and a beneficiary
deed conveying her and Lewis’s jointly-owned residence to the joint trust upon the death of the
second of the two. On May 11, 2011, the assets in an account held in Elizabeth’s name were
transferred to a USAA investment account held in her name. Those assets were subsequently
transferred to a different USAA account held in the name of the trust. On June 4, 2011, a copy of
the trust and a trustee certification form was delivered to the Hartford for an annuity. Although the
beneficiary of the Hartford annuity had previously been the Estate, the beneficiary of the Hartford
annuity was changed to Louis.
On June 4, 2012, Elizabeth died. Louis subsequently engaged in various other financial
transactions. On February 11, 2013, Louis filed a petition to probate Elizabeth’s will. In the petition
he identified the value of the personal and real property of the Estate as $0. Then, on April 5, 2013,

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Louis withdrew his petition for probate of Elizabeth’s will.
II.
The face of the amended complaint shows that this action meets the requirements for original
jurisdiction under 28 U.S.C. § 1332 based on a diversity of citizenship and the amount in
controversy. See Document #15 at 2. However, even when all the prerequisites for federal diversity
jurisdiction are otherwise present, federal courts are generally precluded from exercising jurisdiction
in cases that challenge the validity of a will. Sianis v. Jensen, 294 F.3d 994, 997 (8th Cir. 2002).
“Whether that is the case depends on the remedy available to [the plaintiff] under [state] law.” Id.
at 998.
Generally, where the dispute over the will would be cognizable only in a state
probate court, a federal court is deprived of jurisdiction over the contest, and the
aggrieved party must pursue the action in the probate court. Rienhardt v. Kelly, 164
F.3d 1296, 1300 (10th Cir. 1999); Moore v. Graybeal, 843 F.2d 706, 709 (3d Cir.
1988). But if state law authorizes a suit inter partes to annul a will or to set aside the
probate of a will, and the suit is enforceable in a court of general jurisdiction within
the state, a federal court may entertain jurisdiction over the will contest. Id.; see also
Bassler v. Arrowood, 500 F.2d 138, 141 (8th Cir. 1974) (“Where the action is clearly
in personam, federal courts have the power to adjudicate the controversy.”), cert.
denied, 419 U.S. 1116, 95 S. Ct. 796, 42 L. Ed. 2d 815 (1975). The action
authorized by state law must not be incidental to, or an ancillary proceeding of, the
prior probate action for federal jurisdiction to exist. Moore, 843 F.2d at 709.
Id. Thus, according to Sianis, whether this Court has jurisdiction to decide the validity of
Elizabeth’s February 2011 will depends on whether in Arkansas that issue would be cognizable
exclusively in a probate court or whether it also would be cognizable in a suit inter partes in a court
of general jurisdiction.
In Arkansas, “[t]here is no right to contest a will, except as provided by statute.” Coleman
v. Coleman, 257 Ark. 404, 408, 520 S.W.2d 239, 242 (1974); Manning v. Manning, 206 Ark. 425,
175 S.W.2d 982, 984 (1943) (“[T]here is no right to contest a will except such as is conferred by
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statute.”); Robertson v. Robertson, 144 Ark. 556, 223 S.W. 32, 33 (1920) (“The right to contest a
will is not an inherent or constitutional right. Such a right is purely statutory, and does not exist
independently of statutory authority.”).
The validity of a will may be adjudicated by means of an in rem probate proceeding. “An
interested person may contest the probate of a will, or any part thereof, by stating in writing the
grounds of his or her objection and filing them in the court.” Ark. Code Ann. § 28-40-113(a). “The
administration of the estate of a decedent from the filing of the petition for probate and
administration or for administration until the order of final distribution and the discharge of the last
personal representative shall be considered as one (1) proceeding for purposes of jurisdiction.” Id.
§ 28-40-101(a). “The entire proceeding is a proceeding in rem.” Id. § 28-40-101(b). “A will
contest is not a civil action, but is a special proceeding.” Coleman, 257 Ark. at 408, 520 S.W.2d at
242.
Since the advent of [Arkansas’s] original Civil Code, there have been two
types of proceedings in Arkansas law. One is a civil action; the other is a special
proceeding. Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1974). . . . A civil
action is an ordinary proceeding in a court of justice by one party against another for
the enforcement or protection of a private right or the redress or prevention of a
private wrong. Id. . . . All proceedings not covered by the definition of “civil
action” are special proceedings. Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257
(1987).
Sosebee v. Cnty. Line Sch. Dist., 320 Ark. 412, 415, 897 S.W.2d 556, 558-59 (1995); Weidrick v.
Arnold, 310 Ark. 138, 145, 835 S.W.2d 843, 847 (1992) (“Over the years, [the Supreme Court of
Arkansas] has referred to multiple special proceedings created by statute which do not constitute
civil actions.”) (listing cases).
There are no plaintiffs and defendants in a will contest, and it is not instituted by the
filing of a complaint. This was the case in the Civil Code, which applied to probate
courts only in civil actions and had separate provisions governing will contests. See
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Civil Code ss 24, 806, s 513. While those provisions governing will contests have
been superseded by the Probate Code of 1949, the nature of the proceedings has not.
Coleman, 257 Ark. at 408, 520 S.W.2d at 242.
Here, the will was not probated, and the Estate did not seek to contest the will under the
probate statutes. Rather, the Estate’s state court complaint asserted a claim pursuant to Arkansas’s
declaratory judgment act. That act provides, in pertinent part: “Any person interested under a . . .
will . . . may have determined any question of . . . validity arising under the instrument . . . and
obtain a declaration of rights, status, or other legal relations thereunder.” Ark. Code Ann. § 16-111104.
Whether a plaintiff may contest the validity of a will under the Arkansas declaratory
judgment act is an issue of first impression. This Court has located no Arkansas authority that
suggests an answer to this question. The most apposite federal authority is Kausch v. First Wichita
Nat. Bank of Wichita Falls, Tx., 470 F.2d 1068, 1069 (5th Cir. 1972). In Kausch, the plaintiff
claimed that the federal court had jurisdiction to declare a will invalid in an action brought under
the Texas declaratory judgment act. The language of Texas’s declaratory judgment act was identical
in all relevant respects to Arkansas’s act, providing, “Any person interested under a . . . will . . . may
have determined any question of . . . validity arising under the instrument . . . and obtain a
declaration of rights, status, or other legal relations thereunder.” See id. at 1070 n.1. The district
court found that the court lacked jurisdiction to hear the case under Sutton v. English, 246 U.S. 199,
208, 38 S. Ct. 254, 257, 62 L. Ed. 664 (1918). On appeal, the Fifth Circuit interpreted the phrase
“arising under the instrument” in the declaratory judgment act to mean that the Texas courts could
declare invalid only particular provisions of a will that has already been admitted to probate.
Kausch, 470 F.2d at 1070. The court found that under the declaratory judgment act Texas courts
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“have no power to conduct an independent inquiry into the validity of the will as a testamentary
instrument.” Id. Consequently, the federal court found that it lacked jurisdiction over the plaintiff’s
claim.
Other courts have found that actions to declare a will invalid under state declaratory
judgment acts do not lie for various reasons. See Corron v. Corron, 40 Ohio St. 3d 75, 79, 531
N.E.2d 708, 712 (1988) (holding that an action challenging the validity of a will may not be brought
under Ohio’s declaratory judgment act) (quoting Davidson v. Brate, 44 Ohio App. 2d 248, 251, 337
N.E.2d 642, 645 (Ohio Ct. App. 1974) (“[D]espite the use of the word ‘validity’ in [the declaratory
judgment act], the exclusive method of challenging a will alleged to be invalid on the ground of
undue influence is by a will contest action.”)); Martin v. Kenworthy, 92 Or. App. 697, 698, 759 P.2d
335, 336 (1988) (per curiam) (“There is no authority, statutory or otherwise, that allows avoidance
of the will contest limitation by designating an action as one on a claim or for a declaratory
judgment based on purported invalidity of a will.”); Lipsey v. Lipsey, 660 S.W.2d 149, 150 (Tex.
App. 1983) (“[W]e hold the validity of the entire will cannot be questioned through a declaratory
judgment proceeding.”); Howard Hughes Med. Inst. v. Lummis, 596 S.W.2d 171, 173 (Tex. Civ.
App. 1980) (“To allow the declaratory judgment mechanism to determine the validity of HHMI’s
claim that a valid will exists would impermissibly subvert the statutory scheme and time limitations
established by the probate code.”); Henry v. Cottingham, 253 S.C. 286, 293, 170 S.E.2d 387, 391
(1969) (holding that South Carolina’s declaratory judgment act “is not a vehicle for the nullification
of such instruments. Nor is it a substitute or alternate method of contesting the validity of wills.”);
Farthing v. Farthing, 235 N.C. 634, 635, 70 S.E.2d 664, 665 (1952) (North Carolina) (same). But
see In re Estate of Boote, 198 S.W.3d 699, 715 (Tenn. Ct. App. 2005) (holding that a plaintiff’s

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“declaratory judgment petition, with a copy of the third codicil attached, was sufficient to initiate
a will contest” in a probate proceeding); Harkins v. Crews, 907 S.W.2d 51, 57 (Tex. App. 1995)
(holding that the trial court’s determination that the invalidity of an unprobated will under Texas’s
declaratory judgment act was not error where the action was joined with a probate action and
multiple wills were before the court); Matter of Moerschel’s Estate, 86 Ill. App. 3d 482, 485, 407
N.E.2d 1131, 1134 (1980) (holding that an action under the Illinois declaratory judgment act to void
a will must be construed as a will contest that is governed by the laws controlling such contests in
probate proceedings).
Assuming, without deciding, that an action to contest the validity of a will may be brought
under Arkansas’s declaratory judgment act, the question remains whether such an action is
cognizable under the general jurisdiction of the Arkansas courts. The Supreme Court of Arkansas
has explained:
Under our declaratory judgment act, courts of record within their respective
jurisdictions have the power to declare rights, status, and other legal relations
whether or not further relief is or could be claimed. Ark. Code Ann.
§ 16–111–103(a) (1987). The act itself does not confer subject-matter jurisdiction;
thus, there must be an independent basis for the court’s jurisdiction before it may
render a declaratory judgment. UHS of Ark., Inc. v. Charter Hosp. of Little Rock,
Inc., 297 Ark. 8, 759 S.W.2d 204 (1988). Courts of equity do not have jurisdiction
to render declaratory judgments where the subject matter is not cognizable in a court
of equity. City of Garland v. Miller County, 270 Ark. 981, 606 S.W.2d 751 (1980).
The pertinent inquiry is whether exclusive jurisdiction of the subject matter is vested
in a particular tribunal by the Arkansas Constitution. Daley v. Digby, 272 Ark. 267,
613 S.W.2d 589 (1981).
Bryant v. Picado, 338 Ark. 227, 231, 996 S.W.2d 17, 19 (1999); see, e.g., Martin v. Equitable Life
Assur. Soc. of the United States, 344 Ark. 177, 181, 40 S.W.3d 733, 737 (2001) (Arkansas’s
declaratory judgment “statutes do not confer subject-matter jurisdiction. Thus, declaratory judgment
is procedural, not jurisdictional.” (internal citations omitted)).
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Understanding the nature of the present jurisdictional arrangement of Arkansas’s courts
requires some understanding of the history of probate jurisdiction in those courts. The original
Arkansas constitution of 1836 provided that the presiding judge of the county court would “be a
judge of the Court of Probate, and have such jurisdiction in matters relative to the estates of
deceased persons, executors, administrators and guardians, as may be prescribed by law, until
otherwise directed by the General Assembly.” Ark. Const. of 1836, art. 6 § 10. Actions to
invalidate a will typically began with a proceeding in a probate court. By statute enacted in 1838,
Arkansas law provided, “The court of probate or the clerk thereof in vacation, subject to the
rejection of the court, shall have power to take the probate of wills. Josiah Gould, Digest of the
Statutes of Arkansas (1858), ch. 180 at 1076 § 16. “When any will shall be exhibited for probate,
the court of probate or the clerk thereof in vacation may immediately receive proof thereof, and
grant a certificate of probate, or if such will be rejected shall grant a certificate of such rejection.
Id. § 18. However, the statute further provided that within five years after the probate court’s
probate or rejection of a will, “any person interested in the probate of any will” could petition the
circuit court “to have any such will rejected, if previously established, or proven, if previously
rejected by the court of probate.” Id. at 1078 § 32. Much later, the Supreme Court of Arkansas
described this statutory language as “providing for an original proceeding in the circuit court without
regard, and in addition, to the right of appeal from the probate court.” Dowell v. Tucker, 46 Ark.
438, 440 (1885).
The Arkansas constitutions of 1861 and 1864 contained virtually identical language to the
constitution of 1836. See Ark. Const. of 1861, art. 6 § 12; Ark. Const. of 1864, art. 7 § 12.
However, the Arkansas constitution of 1868 provided that “the General Assembly may provide for

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the establishment of such inferior courts, changes of jurisdiction, or abolition of existing inferior
courts as may be deemed requisite.” Ark. Const. of 1868, art. 7 § 5.
By an act approved April 16, 1873, this “exclusive original jurisdiction, in all matters
pertaining to probate and of administration,” was transferred to the Circuit Court.
The experiment was not satisfactory, and by the Constitution of 1874, the Probate
Courts were re-established. It was provided, (Art. VII, Sec. 34,) that they should
have “such exclusive original jurisdiction in matters relative to the probate of wills,
the estates of deceased persons, executors, administrators, guardians, etc., * * * as
is now vested in the Circuit Court, or may be hereafter prescribed by law.”
Reinhardt v. Gartrell, 33 Ark. 727, 728 (1878) (alterations in Reinhardt).
The Supreme Court of Arkansas stated that, “under the constitution of 1874, the circuit court
has not and cannot take original jurisdiction in any matter relative to the probate of wills.” Dowell,
46 Ark. at 451; see Ouachita Baptist Coll. v. Scott, 64 Ark. 349, 350, 42 S.W. 536, 537 (1897)
(“[T]he circuit court has no original jurisdiction now, as formerly, to try . . . a contest [of a will],
since the constitution confers original and exclusive jurisdiction of wills, etc., upon the probate
court.”); Mitchell v. Rogers, 40 Ark. 91, 97 (1882) (stating that the constitution of 1874 left “in the
Circuit Courts only an appellate jurisdiction.”). The Supreme Court of Arkansas also held that “a
court of equity has no jurisdiction to hear and determine a contest of a will.” Ouachita Baptist Coll.,
64 Ark. at 350, 42 S.W. at 537 (citing Mitchell v. Rogers, 40 Ark. 91, 97 (1882)); see also McLeod
v. Griffis, 45 Ark. 505, 511 (1885) (“This court has repeatedly held that a court of chancery has no
original or appellate jurisdiction in matters of probate and the administration of estates.”).
This constitutionally-prescribed jurisdictional arrangement continued largely unchanged until
2001,1 when Amendment 80 to the Arkansas constitution eliminated the “[j]urisdictional lines that

1

In 1937, the Arkansas constitution was amended to create a direct appeal from probate
courts to the Supreme Court of Arkansas. See Ark. Const. amend. 24 § 2; id., art. 7 § 35 (as
amended); Lewis v. Smith, 198 Ark. 244, 129 S.W.2d 229, 230 (1939). The amendment did not alter
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previously forced cases to be divided artificially and litigated separately in different courts.” First
Nat. Bank of DeWitt v. Cruthis, 360 Ark. 528, 533, 203 S.W.3d 88, 91 (2005). “[C]ircuit court
jurisdiction now includes all matters previously cognizable by circuit, chancery, probate, and
juvenile court.” Id., 203 S.W.3d at 92; see Ark. Const. amend. 80 § 19(b)(1) (“Circuit Courts shall
assume the jurisdiction of Circuit, Chancery, Probate and Juvenile Courts.”). “However, . . .
Amendment 80 did not alter the jurisdiction of law and equity. It only consolidated jurisdiction in
the circuit courts.” First Nat. Bank of DeWitt, 360 Ark. at 534, 203 S.W.3d at 92.
Before Amendment 80 went into effect, “[t]he probate court [was] a court of special and
limited jurisdiction, even though it [was] a court of superior and general jurisdiction within those
limits. It [had] only such jurisdiction and powers as [were] expressly conferred by statute or the
constitution, or necessarily incident thereto.” Hamaker v. Strickland, 340 Ark. 593, 596, 12 S.W.3d
210, 212 (2000) (internal citations omitted). The circuit courts’ “assum[ption]” of jurisdiction and
its “consolidat[ion]” under those courts’ purview, Ark. Const. amend. 80 § 19(b)(1); First Nat. Bank
of DeWitt, 360 Ark. at 534, 203 S.W.3d at 92, did not cause matters previously cognizable by
probate courts to be absorbed into the general jurisdiction of the circuit courts. See Dragan v.
Miller, 679 F.2d 712, 715 (7th Cir. 1982) (“Although Illinois has now abolished separate probate
courts, the scope of the probate jurisdiction remains unchanged, much as the merger of law and
equity left unchanged the scope of equity jurisdiction for such purposes as deciding whether a party
has a right to a jury trial.” (internal citations omitted)).
Therefore, subsequent to Amendment 80, probate jurisdiction under the laws of Arkansas
continues to be special and limited. It follows from what has been said that Arkansas’s declaratory

the probate court’s original exclusive jurisdiction over matters pertaining to wills.
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judgment act empowers a circuit court to issue a declaratory judgment regarding the validity of a
will only by virtue of its probate jurisdiction. Ark. Code Ann. § 16-111-103(a) (“Courts of record
within their respective jurisdictions shall have power to declare rights, status, and other legal
relations whether or not further relief is or could be claimed.”).
Because a declaratory judgment action to declare a will invalid is not cognizable under the
general jurisdiction of Arkansas’s circuit courts, and if Sianis is still good law, the probate exception
deprives this Court of subject matter jurisdiction over the Estate’s request for a declaration that the
will is void.
Perhaps the issue is not so complicated as all of that. Four years after the Eighth Circuit
decided Sianis, the Supreme Court endeavored to clarify the probate exception in Marshall v.
Marshall, 547 U.S. 293, 126 S. Ct. 1735, 164 L. Ed. 2d 480 (2006). There, the Court stated, “the
probate exception reserves to state probate courts the probate or annulment of a will and the
administration of a decedent’s estate.” Id. at 311, 126 S. Ct. at 1748. If the law is really as clear and
simple as this statement seems to suggest, a federal court cannot annul Elizabeth’s February 2011
will. This Court lacks jurisdiction over that portion of the plaintiffs’ claims.
III.
The Estate argues that this Court should remand the entirety of the Estate’s action pursuant
to Colorado River Water Conservation District, 424 U.S. 800, 96 S. Ct. 1236 (1976). The Estate
contends that this Court’s remand of the claim for a declaration that the will is void and its exercise
of jurisdiction over the remaining claims would result in parallel litigation and piecemeal
adjudication of the issues. It maintains that the evidence regarding the validity of the will is
identical to the evidence regarding the validity of the trust that was executed on the same day,

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February 26, 2011. The Estate further maintains that the evidence will be virtually identical to the
evidence regarding the transfer of the trust and change of beneficiary designation of Elizabeth’s
Hartford annuity on June 4, 2011, the transfer of Elizabeth’s USAA account on July 28, 2011, the
power of attorney executed on April 16, 2009, and the transfer of the proceeds of Elizabeth’s
residence on May 29, 2009.
The defendant responds that the Estate’s claims for breach of fiduciary duty, conversion, and
fraudulent concealment are wholly unrelated to the validity of the will. Furthermore, the defendant
argues that the evidence regarding the power of attorney would include an analysis of Elizabeth’s
mental state at a point in time that is nearly two years removed from the execution of the will. The
defendant contends that this Court’s remand of the will would not result in piecemeal litigation
because the issues and evidence involved in the other claims are unrelated to the validity of the will.
Under the Colorado River abstention doctrine, a federal court may abstain from exercising
jurisdiction over an action where there are pending parallel state and federal proceedings. United
States v. Rice, 605 F.3d 473, 476 (8th Cir. 2010). “Generally, as between state and federal courts,
the rule is that “the pendency of an action in the state court is no bar to proceedings concerning the
same matter in the Federal court having jurisdiction . . . .’” Colorado River Water Conservation
Dist., 424 U.S. at 817, 96 S. Ct. at 1246 (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.
Ct. 501, 505, 54 L. Ed. 762 (1910)). Federal courts have a “virtually unflagging obligation . . . to
exercise the jurisdiction given them.” Id., 96 S. Ct. at 1246. “Only the clearest of justifications will
warrant dismissal.” Id. at 819, 96 S. Ct. at 1247. Courts consider the following factors:
(1) whether there is a res over which one court has established jurisdiction, (2) the
inconvenience of the federal forum, (3) whether maintaining separate actions may
result in piecemeal litigation, unless the relevant law would require piecemeal
litigation and the federal court issue is easily severed, (4) which case has
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priority—not necessarily which case was filed first but a greater emphasis on the
relative progress made in the cases, (5) whether state or federal law controls,
especially favoring the exercise of jurisdiction where federal law controls, and (6)
the adequacy of the state forum to protect the federal plaintiff’s rights.
U.S. Fid. & Guar. Co. v. Murphy Oil USA, Inc., 21 F.3d 259, 263 (8th Cir. 1994). “No one factor
is necessarily determinative; a carefully considered judgment taking into account both the obligation
to exercise jurisdiction and the combination of factors counseling against that exercise is required.”
Colorado River Water Conservation Dist., 424 U.S. at 818-19, 96 S. Ct. at 1247.
Here, state law governs the Estate’s claims and the state forum would be adequate to protect
the rights of the parties. These two factors cut in favor of abstention. However, the other factors
cut against it. There is no res over which a court has established jurisdiction. There is also no
reason to believe that the federal forum is less convenient to the parties than the state forum.
Although remanding the issue of the validity of the will does present the potential for piecemeal
litigation, the federal court issues are easily severed. The defendant has indicated that the value of
the Estate is $0. If that is true, no assets will be affected by the determination of whether the will
is valid. On the other hand, issues regarding substantial sums of money seem to be presented outside
of the issues regarding the will. To allow a claim that apparently has no monetary value to deprive
this Court of jurisdiction over claims involving large sums of money would be to allow the tail to
wag the dog. Finally, the case has not proceeded far in either state or federal court, so neither court
has priority. Carefully considering these factors, the Court finds that they fall short of providing
“the clearest of justifications [to] warrant dismissal.” Id. at 819, 96 S. Ct. at 1247. Therefore,
abstention is not warranted under Colorado River.

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CONCLUSION
For the reasons explained above, the Estate’s motion to remand is granted in part and denied
in part. Document #9. The Estate’s claim for a declaration that Elizabeth’s will is void will be
remanded to the Circuit Court of Pulaski County, Arkansas. This Court will retain jurisdiction over
the remaining claims.
IT IS SO ORDERED this 7th day of October, 2014.

_________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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