# FILED
December 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
JOHN BRANTLEY, KATHY B. ) SKINNER, ALISON BRANT LEY ) WILLIAM THOMAS MAYO and ) RICHARD MAYO, ) ) Plaintiffs/Appelle

es, ) Madison General Sessions No. 9360

) vs. ) ) Appeal No. 02A01-9710-GS-00261 ROBERT MAYO and KATHRYN ) MAY GILTNER, ) ) Defendants/App

ellants. )

APPEAL FROM THE GENERAL SESSIONS COURT OF MADISON COUNTY AT JACKSON, TENNESSEE

THE HONORABLE WALTER BAKER HARRIS, JUDGE

For the Plaintiffs/A

ppellants : For the Defendants/Appellees : Jesse H. Ford, III John Van den Bosch, Jr. Jackson, Tennessee G. William Hymers, III Jackson, Tennessee

REVERSED AND REMAN DED
HOLLY KIRBY LILL

ARD, J.
CONCUR: W. FRANK CRAWFORD, P. J., W.S. ALAN E. HIGHERS, J
.OPINION

This is a probate case. The decedent set up joint accounts with right of survivorship with

her two surviving children. The surviving children were named co- executors of the decedent’s estate. The trial court remov

ed the decedent

’ s childre n as co-executo

rs of the estate a

nd found that these accounts wereassets of the decedent’s estate, not joint accounts. The decedent’s surviving children appeal. We find that the evidence was insufficient to support a findin g of undue influence, and reverse the decision of the trial court. M a r y T
. M ayo F i e l d i n g ( T est a t r i x) di ed t est

a t e on M ay 21 , 19 9 0
. H e r w i l l l e f t on e - f o u r t h o f her es t a t e t o ea ch of her s u r v i v i ng ch

i l d r en, Robert BrownMayo (“Mayo”) and Kathryn Mayo Giltner (“Giltner”), and di

v i ded t he ot her hal f am ong t he c h i l d r en of

her t w o d eceased chi l dren. T he w i l l w a s admi t t ed t

o pr obat e on J une 9, 1990, and is notcont

e s t ed i n t h i s act i on. I n her

w i l l , T e s t a t

r i x nam e d h er t w o su rviving ch i l d ren , M a y o an d G i l t n er, d efen d a n t s / A p p ella n t s , as co -ex ecu t o rs. T h i s d isp u te a r o s e o v e r the statu s o f ce rtain a c c o u n ts w i t h J. C . B r a d f o r d & C o m pan y held by T e s t a trix
. T he accou n t s w e r e set up as j o i n tac count

s w i t h r i ght s of

s u r v i vor s h i p , w i t h T e s t a t r i x and t h e co-execut ors , t he d e f end ant s M ayo an d G i l t ner, a s jo i n t te n a n t s . I f t he accou n t s w e r e con s i dered par t of T est a t r i x’ es t a t e and di s t

r i b u t ed u n d e r her w i l l , T est a t r i x’ gr and chi l dren w o u l d h ave recei ved

a por t i on of

t he f u n d s . T h e T estat

r ix ’ gran d c h i l d ren fi

l e d t h i s acti o n , ch all

e n g i n g t h e stat

u s o f t h e
a c count s and r eque s t i ng that

t he de f enda n t s be r e m oved f r o m t hei r pos i t i ons as

co- execut

o r s . At the trial, the plaintiff grandchildren contended that Testatrix had been the victim of undue influenceby defendants Mayo and Giltner. The proof at trial showed that Testatrix kep t det ailed
rec ords of all her affairs and managed her own business matters until she became ill in 1989
. Testatrix underwe nt heartbypass surgery on July 19, 1989, and continued to suffer from poor physical health until her death in 1990. Dr. James J. Diffee, Testatrix’s doctor, testified as to her physical health pr

ior to her death in May 1990. Testatr

ix suffered f

rom atherosclerotic heart disease, intermittent congestive heart failur e, functional bowel disease and anemia, along with other more minor problems. Dr . Diffe e statedthat he did not notice mental deterioration during the time he treated the Testatrix, however, his only contact with T

estatrix was rel

ated toher

health, and not to her business concerns. Dr. Diffee repeatedly

stated that he had

no knowledge of Te

statrix’s mental a

bility as related t

o her business affairs. Giltner, Testatrix’s daughter, t estified that she usually accompanied Testatrix to her2

appointments

with Dr. Diffee and often contacted the doctor’s office on behalf of her mo ther. Familymembers testified that Giltner and Mayo took care of such thingsas doctor appointm ents and upkeep on Testatrix’ home and rental properties. Defendant

Mayo testifi ed at t

rial that he moved home to Jackson, Tennessee from Birmingham,Alabama in 1984. A t that time, Testatrix placed Mayo’s name on her checking account so that he could “w

rite checks for

her and do what sh

e wanted [him] to do.” Testatrix he ld severalcertificates of deposit at Fidelity Federal Bank, now Union Planters Bank, in her ownname. Mayo testified that, in 1 989, Testatrix asked him

to find an accoun

t that would bear h

igher interest than did her certific

ates of deposit.

Mayo informedhis mother that he ma intained an acco

unt at J.C. Bradford Company that earned eight percent interest. Mayo the n introduced Testatrix to Terry Nanc e, vice-president

at J.C. Bradford, w

ho opened two stoc

k market accoun

ts for Testa

trix
. Testatrix had never before done business with J.C. Bradford, and had never before dealt

in the stock market. Although several witnesses at trial testified as to Testatrix’ business acumen, more than one witnessremarked

that they were surprised to see Testatrix become active in the stock market at that point in her life, when she had no prior experience in that area. Te stimony at trial established how the J.C. Bradford accounts at issue were set up an d funded. One account was opened in October 1989 and the other was opened in November 1989
. One account

was set up with Test

atrix and Giltner

as joint owners, a

nd the other was se

t up wit h Testatrix and Mayo as joint owners. The J.C. Bradford employees who opened the accounts testified at trial, and could no

t say whether Tes

tatrix knew what “

joint ownership

with rights of

survivorship” meant. The J.C. Bradford employees were unsure whether Testatrix ac tually requested joint accounts with survivorship rights. The trial court ruled that “the J.C. Bradford accounts are as sets of the estate, and not joint accounts.” The trial court di d not put in its orde r the reason for the ruling. However, in its oral ruling, the trial court stated:

. . . [W]it h respect to

the accounts at J. C. Bradford Company, where the deceased hadnever done any business befo

re, was taken out

by relatives and d

id, in fact, crea

te the documents with the right of survivorship. The Court does hold that those are, in fact, estate as sets.3

Mayo andGil tner now appeal t his decision. On ap

peal, they argue

that the trial cour

t erred in its decision to include the J. C. Bradford accounts as assets of Testatrix’ estate. We review thetrial court’s judg ment de novo , with a presumption of the correctness of the trial court’s findings of fact. Rule 13(d) of the Tennessee Rules of Appellate Procedure. The party seeking to invalidate a transaction because of

undue influence has the burden of proof. Wi lliamson v. Upchurch , 768 S.W.2d 265, 269 (Tenn. App. 1988). Tennessee case law reflects the well-settled p

resumption “that a

ny transaction be

nefit ing the dominant party in a confidential relationship is invalid where there is proof that the dominant party exercised dominion
or influence over

the weaker party.” Williamson , 768 S.W.2d at 269 (citing Gordon v. Thornton , 584 S.W.2d 655, 658 (Tenn. App. 1979); Roberts v. Chase , 25 Tenn. App. 636, 651, 166 S.W.2d 641, 650-51 (1942)). “[O]nce the presumption arises, the bu rden shifts to the d ominant party to demonstrate

that the transaction is proper.” Id. (citing Parsley v. H arlan , 7 02 S.W.2d 166, 174 (Tenn. App. 1985); Howell v. Davis , 43 Tenn. App. 52, 59-60, 306 S.W.2d 9, 12 (1957)). However, the party seeking to invalidate the transaction must first establish a confidential relationship. Generally, a confidential relationship is one “which gives one party dominion or influence
over the other.” Williamson , 768 S.W.2d at 269. “[P]roof of a confide ntial relationship

will not, by itself, give rise to the presumption o f in validity. It must be a ccompanied by pr

oof tending to show that the free agency of the weaker party was destroyed and replaced by the will of the dominant party.” Id. (citations omitted). “Evidence of one party's deteriorated mental or physical condition willsubstantiate the e

xistence of a con

fidential relatio

nship as well as the

ability of the domina nt party to influence the weaker party.”Id. ; see Fritts v. Abbott, 938 S.W.2d 420, 420-21 (Tenn. App. 1996). The elements of undue influence are: dominion andcontrol by the stronger over the weaker, or there must be a showing of senility or physical or mental deterioration of the donor or that fraud or duress was involved, or other conditions which would tend to establish thatthe free agency of the donor was destroyed and the will of the donee was substituted therefor. Fritts v. Abbott , 938 S.W.2d420, 420-21 (Tenn. App. 1996) (quoting Kelly v. Allen , 558 S.W.2d 845, 848 (Tenn. 1977)). Defendants may rebut the presumption of undue influence by proof of the fairness of the transaction, established by a preponderance of the evidence. Reynolds v. Day , 792 S.W.2d 924 (Tenn. App. 1990). The fairness of the transaction may be demonstrated by showing4

that the Testatrix had independent advice during the transaction. Crain v. Brown , 823 S.W.2d 187, 194 (Tenn. App. 1991) (citing Richmond v. Christian , 555 S.W.2d 105 (Tenn. 1977)). The question of whethe

r a confidential

relationship

existed is a question of fact. Fritts , 938 S.W.2dat 421; see Matlock v. Simpson , 902 S. W.2d 384 (Tenn. 1995). No particular set of circumstances requires a finding of undue influence. Instead, “the undue influence issue should be decided by the application of sound principles and good sense to the facts of each case.” Mitchell
v. Smith , 779 S.W.2d 384, 388 (Tenn. App. 1989) (quoting Halle v. Summerfield , 199 Tenn. 445, 454, 287 S.W.2d 57, 61 (1956)). Defendants

rely on a recent Tennessee Supreme Court case, In re Nichols , 856 S.W.2d 397 (Tenn. 199 3), which involves facts similar to this case. In Nichols , Testatrix willed “all [her] property, real and personal[,]” to her son and her two gra

ndchildren, in eq

ual shares. Nichols , 856 S.W.2dat 398. Testatrix a lso purchased or

renewed seven

certificates of

deposit prior to her death, andestablished those accounts in joint tenan cy with right of sur vivorship with her s

on. Testatrix died, and the certificates of deposit transferred to son as sole owner. One grandchild filed s uit to establish the certificates of deposit as part of the estate. The recor d conta ins testimony from the Testa trix’s law yer, who stated that Testatrix had informed him that she “wanted her estate to be dividedequally between

the three” bene

ficiaries of her

will. Id. Testatrix also informed her lawyer that she “had instructed [son] as to what he was to do with the certificates of deposit, that they were allto be divided equally between him and the two grandchildren.” Id. Tes tatrix stated that she trusted her son to do her will, even though it was not the law. Id. The trial court found

the certificate

s of deposit to

be part of the estate, and was affirmed by the Cou rt of Appeals. The Tennessee Supre

me Court reverse

d, finding that owne

rship of th

e certificates of deposit purchased after January 1, 1989 was controlled by the provisions of Tennessee Code Annotated § 45 -2-703(e)(1) ( Supp. 1992), which s

tates in pertinent

part: A designation of “jo

int tenants with righ

t of survivorship ,” orsubstantially similarlanguage, shall be conclusive evid ence in any action or proceeding of the intentions of all named that title vests in the survivor. Nichols , 856 S.W.2d at 399. In this case, the accounts at issue were established after January 1, 1989; consequently, Tennessee Code Annotated § 45-2-703(e)(1) applies.5

In this case, there was evidence from which the t rial co urt could conclud

e that Testatrix placed trust and confidence in Mayo and Giltner, relying on them for such items askeeping up with appointments

and taking care of her home and rental properties. There was t estimony regarding Testatrix’ deteriorated physical condition after her heart surgery. Witnesses testifie d that Testatrix hadnever before o

pened accounts

such as those at J.C. Bradford and that they were surprised to see her do so. However, the testimony of Testatrix’ physician was that he noticed no mental deterioration during the time in which he treated her, from the time of her heart surgery until her

death. There is
no evidence that Testatrix’ mental cond ition dete riorated to permit Mayo and Giltner to have “dominion or influence” ov er Testa trix. Wi lliamson , 768 S.W.2d at 269. There is simply no evidence from which the

trial court

could conclude that Testatrix’ “free agency . . . was destroyed andreplaced by the will of thedominant party [Mayo and Giltner].” Id. Consequently, the evidence is insufficient for the trial court to find a confidential relationship that would create a presumption that any tran saction be nefitting Mayo and Giltner would be invalid. See id. Accordingly, the decision of

the trial court, ho

lding the creatio

n of the joint acco

unts invalid and including the joint J. C. Bradford accounts in Testatrix’ estate, must be reversed. The decision of the trial court is reversed, and the cause is remanded for further proceedings consistent with this Opinion. Costs on appeal are assessed against Appellees, for which execution may issue if necessary.

H O L L Y KI RBY LI L L

ARD, J . CONCUR:

W . F RANK CRAW F ORD, P . J . , W . S .

ALAN E . HI G H ERS , J .