### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON

BILLY JOE CHILDRESS v. NATA SHA BARNES CURRIE, bot h individually

and as admin

istrator C. T.A. of the

ESTATE OF VI

RGINIA MARY LEONARD,

Direct Appeal from the Circuit Court for Lauderdale County

No. 5029 Joseph H. Walker, Judge

No. W1999-00471-COA-R3-CV - Decided May 15, 2000

In this dispute, Plaintiff

Billy Joe Childress contests a will executed by Virginia Mary Leonard (“the Decedent”) on May 22, 1997, the sole beneficiary of which is Defendant Natasha Barnes Currie. A jury found that the Dec

edent had t estamentary capacity to execute the May 22, 1997 will and that there was clear and c

onvincing evide

nce to overcome

the presumptio

n that Ms. Currie exercised undue influence over the Decedent. Upon a post-trial motion filed by Mr. Childress, however, the trial court set aside the jury verdict. For the reasons set forth below, we reverse the ruling of the trial court and reinstate the jury verdict in favor of Ms. Currie.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; an d Remanded

F ARMER , J., delivered the opinion of the court, in which C RAWFORD , P.J., W.S., and L ILLARD , J., joined.

Charles W. Fowler

and Adam F. Glankler, Memphis, Tennessee, for the appellant, Natasha Barnes Currie.

J. Thomas Caldwell,

Ripley, Tennessee

, for the appelle

e, Billy Joe Childres s.

OPINION

Ms. Currie

is the granddaughter of Elizabeth Barnes, who was the Decedent’s se cond cousin. Mr. Childress was a friend and former employer of the Dece dent. O n February 16, 1994, the Decedent executed a will lea

ving her entire

estate to Mr. Childr

ess. In April o

f 1997, Ms. Currie began living with

the Decedent

on a part time basis and helping the Decedent care for herself and her home. By May o f 1997, Ms. Currie w as living with and

assisting the Dec

edent on a full time basis. On May 5, 1997, Ms. Currie drove the Decedent and Ms. Barnes to the B ank of Ripley, where the Decedent cashe

d in $4,374.91 of an

$8,446.22 certif

icate of deposit

and arranged for

Ms. Barnes’

name to be placed on the certificate of d eposit. On May 22, 19

97, at the Decede

nt’s request, Ms. Currie drove the Decedent and Ms. Barnes to Currie’s Funeral Home, where the D ecedent purchased1 Although Frank Currie is not directly related to Natasha Barnes Currie, he is the uncle of

Ms. Currie’s former husband.

2 This provision state

s as follows:

Where the validity of any last will or testament, written or nuncupative, is contested, the court having probate ju

risdiction over su

ch last will or testament shall cause the fact to be certified to

th e circui t court, and send to the court the original will, and shall require the contestant to enter into bond, with surety, in the penal sum of five hundreddollars ($500), payable to the executor mentioned in the will, conditioned for the faithful prosecution of thesuit, and, in case o f failure there

in, to pay all

costs that may accrue thereon.

Tenn. Code Ann. § 32-4-101 (1984).



### -2- a prearranged

funeral plan fr

om Frank Currie 1 for the sum of $5,421.00. After purchasing the funeral plan, the Decede

nt asked Mr. Currie

to draft a power of attorney in favor of Ms. Currie and a will leaving her entire esta

te to Ms. Currie. Mr. Currie then drafted and the Decedent executed a power of attorney

in favor of Ms. Cur

rie, as well as a w

ill stating as follo

ws:

I, Virginia M. L

eonard, of L

auderdale County

, State of Tenness

ee, City of R ipl ey, the undersigned

hereby de

clare and appoi

nt Natasha Barn

es Currie the rig

ht to handle any and all of my bu sine ss and to live with me. At the time of my death Natasha Barnes Currie will have all of my possessions.

On June 10, 1997, the Decedent was admitted to the hospital, where s

he was treated b

y Dr. Lu is Wong. She was subsequently transferred to the geriatric/psychiatric unit of the hospital and treated by Dr. Louis Wells. On July 3, 1997, the Decedent was discharged to a nur sing home , where she died sixteen days later.

On July 31, 1997, the

Lauderdale County Probate Court admitted the Decedent’s February 1994 will to probate andappointed Mr. Childress to serve as the executor of the Decedent’s estate. In September of 1997, Ms. Currie filed a petition contesting the Decedent’s February 1994 will and offe ring the Decedent’s May 1997 will for probate. I n his response to the petition, M r. Childres s alleged that the Decedent did not have testamentary capacity to execute the May 1997 will and that the Decedent signed the May 1997 will as a res u lt of undue influence. The probate court subsequently

entered an order temporarily suspending the letters testame ntary previously issued

to Mr. Childress. In October of 1997, Mr. Childress filed a complaint contesting the validity of the Dec edent’s May 1997 will. Thereafter in November of 1997, the probate court admitted the Decedent’s May

1997 will to probate and appointed Ms. Currie as theadministrator, C.T.A. of the Decedent’s estate. Additionally, at the request of both parties, the matter was trans ferred to the Lauderdale

County Circuit Court for a jury trial pursuant to section 32-4-101 of the Tennessee Code Annotated. 2 The parties presented their proof on February 22, 2 3, and 24, 1999, after which Mr.

### -3-

Childressmade a motion for a directed verdict, arguing (1) that the burden is on Ms. Curr

ie to prove by clear and convincing evidence the fairness of the transaction, (2) that the only way to show the f airness of the transaction is by proving that the Decedent rece ived independent advice pr ior t o executing her May 1997 will, and (3)that Ms. Currie had not presented any evidence sugg esting that the Decedent rece

ived independent

advice prior to

executing the May 1997 will. The court took the motion under advisement. The court then instructed and submitted two questions to the jury, as follows:

1. On May 22, 19 97, at the time of the

execution of the doc

ument, did Virginia Le

onard have the me

ntal competency

to make a will?

2. Did the proponent of the will show by clear and convincing evidence the fairness of the transaction and nonexistence of undue infl uen ce at the time of the execution of the doc

ument?

The jury answered both of these questions in the affirmative. An order reciting the jury’s verdict was entered by the circuit court on

March 1, 1999. Mr. Childress subsequently filed a motion for a new tr i al and a motion for a judgment in accordance with his motion for a directed verdict, which the court had previously taken under advisement. On April 12, 1999, the circuit court issued an order granting Mr. Childress’ motion for a directed verdict and setting aside the jury’s finding regarding the issue of undue influence. In this order, the cour t specifically

found that the Decedent did not receiveindependent advice prior to executingher May 1997 will and that, under the circumstances of the case at bar, proof of independent advice was the only way to rebut the presumption of undue influence and show the fairness of the transaction. Ms. Currie subsequ ently filed a motion to alter or amend the circuit court’s April12, 1999 ruling, which was denied by the court. This appeal by Ms. Currie followed.

The issues prese

nted on appeal, a

s we perceive th

em, are as follow

s:

1. Did

the trial court err

in instructing the jury that, as a matter of law, there is

a presumption that the Decedent was under the undue influence of Ms. Currie at the time that she

executed the May

1997 will?

2. Did

the trial court err i

n granting Mr. Childress’ motion for a directed verdict and setting aside the jury’s finding that Ms. Currie had proven by clear and convincing evidence the fairness of the transaction and that the Decedent was notunder undue influence at the time that she executed t

he May 1997 w

ill?

### -4-

Ms. Currie appeals

from the decision of the circuit court to grant Mr. Childress’ motion for a directed verdict. In ruling on the motion for a directed verdi ct, the cir

cuit court reached certain legal

con clusions that are subject to de novo review and are not accompanied by a presumption of correctness. See, e.g., Bell ex rel. Snyder v. Icar

d, Merrill, Cullis, Timm, Furen a nd Ginsburg

, P.A.
, 986 S.W.2d 550, 554 (Tenn. 1999); T.R.A.P. 13(d). To the extent, however, that the court’s ruling on the motion for a directed verdi ct was base d on its findings of fact, we must review the court’s decision taking the strongest legitimate view of the evi d ence in favor of the non-moving pa

rty which, in the case at bar, is Ms. Currie. See Ezell v. Associates Capital Corp. , 518 S.W.2d 232, 233 (Tenn. 1974); United

Brake Sys., Inc. v. A

merican Envtl. Protect

ion, Inc. , 963 S.W.2d 749, 754 (Tenn. Ct. App. 1997); Harrogate Corp. v. Systems Sales Corp. , 915 S.W.2d 812, 817 (T enn. Ct. App. 1995); Souter v. Cracker Barrel Old Country Store, Inc. , 895 S.W.2d 681, 683 (T enn. Ct. App. 1994). We must remove any conflict in

the evidence by construing the evidence in the light most favorable to Ms. Currie and discarding all countervailing evidence. See Ezell , 518 S.W.2d at 233; United Brake Sys., Inc. , 963 S.W.2d at 754; Harrogate Corp. , 915 S.W.2d at 817; Souter , 895 S.W.2d at 683; Underwood v. HCA Health Servs. of Tennessee, Inc. , 892 S.W.2d 423, 425 (Tenn. Ct. App. 1994). If

, after evaluat

ing the evidenc

e in this manner, it i

s determined that r

easo nabl e minds could not disagree regarding the conclusions to be drawn from the evidenc e , then we m ust affirm the circuit court’s decision to grant Mr. Childress’ motion for a directed verdict. See United Brake Sys., Inc. , 963 S.W.2d at 754; Underwood , 892 S .W.2 d at 42 6. If , however, th ere is any doubtregarding

the proper conclusions to be drawn from the evidence, we must reverse the court’s ruling with respect to the motion. See Unit e d Brake Sys., Inc. , 963 S.W.2d at 754; Souter , 895 S.W.2d at 683.

We first address whether the circuit court erred in gra nting Mr. Childress’ motion for a directed verdict and setting aside the jury’s finding that Ms. Currie had proven by clear and convincing evidence the fairness of the transaction and the nonexistence of undue influence. In its April 12, 1999 order, the court found (1) th at, under the cir

cumstances of the

case at bar, the

only way in which Ms. Currie could have overcome the presumption of undue influence was by proving that the Decedent

had received independent advice prior to the execution of her May 1997 will and (2) that, as a matter of law, the Decedent did not receive independent advice prior to executing the May 1997 will. On appeal, Ms. Currie argues that the circuit court improperly placed on her the burden of proving the fai rness of the tran

saction. Assuming,

however, that the

circuit court w

a s correct withrespect to the bur

den of proof in

the case at bar, Ms. Currie contends that the court erred in its conclusion that the only way to prove the fairness of the transaction was by showing that the Decedent received indep

endent advice. Fi

nally, assuming tha

t proof of indepen

dent advic e w as necessary in order to show the fairness of the transaction, Ms. Currie argues that the Decede n t received independent advice from Mr. Cur rie, who prepared the Decedent’s May 1997 will and power of attorney.

It is well settled that the execution of an unrestricted power of attorney create s a confidential relationship between th

e person granting the power (the principal) and the person rece iving the power (the attorney-in-fact). See Matlock v. Simpson
, 902 S.W.2d 384, 386 (Tenn. 1995); Johnson

v. Craycraft , 914 S.W.2d 506, 510 (Tenn. Ct. App. 1995); Mitchell v. Smith , 779 S.W.2d 384, 389

### -5-

(Tenn. Ct. App. 1989); Arnoult v. Griffin , 490 S.W.2d 701, 706 (Tenn. Ct. App. 1972); State ex rel. Teague

v. Home Indem. Co. , 442 S.W.2d 276, 279 (T enn. Ct. App. 1967) ; Black v. Pettigrew
, 270 S.W.2d 196, 202 (Tenn. Ct. App . 1 953); First Tennessee Bank Nat’l Ass’n v. Webb , No. 03A01-9801-CH-00011, 1998 WL 906709, at *4 (Tenn. Ct. App. Dec. 22, 1998); Kelley v. Martin
, No. 01A01-9803-PB-00157, 1998 WL 832413, at *3 (Tenn. Ct. App. Dec. 3, 199 8) ; Perry v. Rubley
, No. 01-A-01-9801-CH

00044, 1998 WL 65 2587, at *5 (Tenn. Ct. App. Sept. 23, 1998); Barham v. Cooper
, No. 02A01-9608-Ch -00200, 1997 WL 5

42922, at *3-4 (Te

nn. Ct . App. Se pt. 5, 1997); Garton v. Norman , No. 01-A-01- 9511-CH-

00514, 199 6 WL

325215, at *5 (Tenn. Ct. App. June 14, 1996); Pucket

t v. Kr ida , No. 01-A-01-9403-CV-00100, 1994 WL 475863, at *6 (Tenn. Ct. App. Sept. 2, 1994); Lindseth v. Norwood , No. 33, 1990 WL 143221, at *2 (Tenn. Ct. Ap p. O ct. 3, 1990). When there is a con fidential relatio

nship between two p arties and the parties engage in a transaction involving the assets of the weaker party that benefits the d ominant party

, there is a presumption that the transaction is invalid. See Matlock , 902 S.W.2d at 386; Elam v. Oakley , 738 S.W.2d 169, 193 (Tenn. 198 7); Richmond v. Christian , 555 S.W.2d 105, 107 (Tenn. 1977); Estate of Depriest v. Allen , 733 S.W.2d 74, 78 (Te nn. Ct. App. 1986); Peoples Bank v. Baxter , 298 S.W.2d 732, 737 (Tenn. Ct. App. 1956); Roberts v. Chase , 166 S.W.2d 641, 650-5 1 (Tenn. Ct. App. 1942). This presumption of invalidity is rebuttable upon a showing of the fairness of the transaction by clear and convincing evidence. See Matlock , 902 S.W.2d at 386 (ov erruling case

s requiring only

a preponderance of the

evidence to over

come the presumpt

ion of invalidity

); Hogan v. Cooper , 619 S.W.2d 516, 519 (Tenn. 1981); Richmond , 555 S.W.2d at 107; Johnson , 914 S.W.2d at 511; Estate of Depriest, 733 S.W.2d at 78-79; Brown v. Weik , 725 S.W.2 d 938, 94 5 (Tenn. Ct. App. 1983); Simmons v. Foster , 622 S.W.2d 838, 840-41 (Tenn. Ct. App. 1981); Roberts , 166 S.W.2d at 651. The burden of proving the fairness of the transaction rests upon the dominant party to the relationship. See Gordon v. Thornton , 584 S.W.2d 655, 658 (T enn. Ct. App. 1979) ; Arnoult , 490 S.W.2d at 708. One means of overcoming th e presumption of in

validity is by proof that the weaker party received independent advice before engaging in the transaction that benefitted the dominant part y. See Hogan , 619 S.W.2d at519; Richmond , 555 S.W.2d at 107-8; Estate of Depriest , 733 S.W.2d at 79; Peoples Bank , 298 S.W.2d at 737. Proof of independ ent advice is not,

however, an essential requirement. See Hogan , 619 S.W.2d at 520; Richmond , 555 S.W.2d at 108; Estate of Depriest
, 733 S.W.2d at 79; Gordon , 584 S.W.2d at 658. The court may a

lso look to the totalit

y of the circumstances to determine whether the presumptionhas been overcome. See, e.g., Gordon
, 584 S.W.2d at 658.

In the instant case, the Decedent executed a power of attorney in favor of Ms. Currie. She then executed a

will benefitting

Ms. Currie, which g

ranted to Ms. Curri

e “the right to handle any and all of [the Decedent

’s] business

and to live with [the Decedent].” Thus, the circuit court assumed in its order setting aside the jury verdict that there was a confid

ential relationship between the Decedent and Ms. Currie giving rise to the presumption that the Decedent’s May 1997 will is invalid. It is undisputed, however, that Mr. Currie prepared the May 1997 will and power of a ttorney at the request of the Decedent. It is further undisputed that Ms. Currie did n

ot participate

in the execution of these documents a

nd was not even pr

esent at the time th

at the documents

were executed. Fin all y, it is undispu

ted that Ms . Currie w

as not awa

re that a p

ower of a ttorney had been e

xe cuted in he r favor until the evening of May 22, 1997, after the execution of the Dec edent’s May 1997 will.

### -6-

As n ot ed above, the courts of this state have repeatedly held that the execution of an unrestricted

power of attorney creates a confidential rela tionship b etween th e principal and the attorney-in-fact. In each of th ese cases, the a

ttorney-in -fact took some a

ffirmative actio

n to encourage or assist in the execution of the power of attorney, exercised the power of attorney , or, at the very least, was aware of the existence of the power of attorney. See Matlock , 902 S.W.2d at 385 (Simpson prepared and assisted in the execution of a power of attorney naming himself as Matlock’s attorney-in-fact

as well as a will naming himself as thebeneficiary of the majority of the Matlock’s estate.); Johnson , 914 S.W.2d at 507-09 (Johnson gra nted a power of attorney to Craycraf t, who subsequently

exercised the power of attorney (1) by writing a $200,000.00 check against Johnson’s bank account to purchase a certificate of deposit that was placed in both his and Johnson’s names and that was later use

d to purchase a c

ertificate of deposit in Mr. Craycraft’s name only and (2) by writing a $15,000.00 check against Johnson’s bank account and depositing the check in an account ownedby Craycraft

and his wife.); Mitchell , 779 S.W.2d at 387 (Smith drove Bush to the office of an attorney who had been recommended by Smith’s husband, where Bush subsequently executed

a power of attorney

in favor of Smith and a

will naming Smith as

a beneficiary

of his estate.); State

ex rel. Teague , 442 S.W.2d at 277-78 (Gooch executed a power of attorney in favor of his nephew, who subsequently persuaded Gooch to give him s

ubstantial amounts o

f cash to be distributed a

s gifts to himself and other

members of Gooch ’s family.) ; Black , 270 S.W.2d at 202 (Blac k exec uted a power of attorney in favor

of Homer, who subsequently exercised the power of attorney by handling Black’s real estate and

other business mat

ters.); Webb , 1998 WL 906709, at *1-2, 5 (Webb executed

a warr anty dee d transferring his interest in a pie

ce of real prope

rty to his son a

nd immediately thereafter executed a power

of attorney

in favor of his son. ); Kelley , 1998 WL 1998 WL 832413, at *1 (Davisexecuted a power of attorney

in favor of Kelle

y, who subse

quently exercised the power of attorney

(1) by using

Davis’ funds to pur

chase a home, which Kel

ley ultimate

ly receive d in fee simple, and (2) by selling Davis’ home and placing the proceeds of the sale in a bank account and

a certificate of deposit beari n g both Davis’ and Kelley’s na

mes.); Barham , 1997 WL 542922, at *1-2 (Barham executed a power of attorney in favor of Cooper, after which Cooper began co ntroll ing Barham’s finances and

col lecting income f

rom the rental of B arham’s home.); Garton , 1996 WL 325215, at *1-2 (Randolph executed a power of attorney in favor of Norman and, after Randolph was declared incompetent, Nor

man began hand

ling Randolph’s bu

siness affairs.) ; P uckett , 1994 WL 475863, at *1 (Hooper executed a power of attorney in favor of Krida, Krida beg an exercising the pow er of att orn ey, and Hooper subsequently executed a will leaving her entire estate to Krida and Puckett.); Lindseth , 1990 WL 143221, at *1 (Tedder executed a pow er of attorney in favor of Norwoodand Norwood subseq uently exe cuted the power o

f attorney by removing

approximately $40,00 0.00 from Tedder’s ba nk account and pla

cing it in a new a

ccount bearing

the name s o f Norwoo d and T edder’s grandson and another new account bearing the name s of Norwood and Tedder.). In the instant c ase, it is undispute

d that Ms. Currie did

not know that the De

cedent h a d executed a power of attorney in her favor until after the execution of the De cedent’s May 1997 will. In each of the

cases cited above, however, there is no evidence suggesting tha t the attorney-in-fact

was unaware of the existence of the power of attorney. Thus, these c ases do not specifically

address whether a confidential relationship exists between a principal and his or her attorney-in-fact when the attorney-in-fact has no knowledge, prior to the t ransaction from which the attorney-in-fact receives a benefit, that the principal has executed the power of attorney in his or her favor.

### -7-

Although the execution of an unrestricted power of attorney crea tes a confidential relationship

between the prin

cipal and his

or her attorney

-in-fact, this Cou

rt has previously

held that such a relationship does not arise when, although executed, the power of attorney had

not yet beco

me effectiveat the time of the transaction benefitting the attorney-in-fact. In Garton , Marie Randolph executed a power of

attorney in favor of her nephew Henry Norman, which specifically provided that it w as to become effective upon Mrs. Randolph’s disability or incapacity

. See Garton , 1996 WL 325215, at *1-2. After Mrs. Randolph was subsequently declared by her docto r to be mentally incapacitated, Mr. Norman began exercising the power of attorney

. See id. at *4. Three of the beneficiaries of Mrs. Randolph’s will subsequently filed an action against Mr. Norman claiming that he had misused Mrs. Randolph’s funds and exercised undue influence over her. See id. at *1. The three beneficiaries challenged all tr ansactions between Mrs. Randolph and Mr. Norman that took place after the execution of the power of attorney in favor of Mr. Norman, arguing that the execution of the power of attorney created a confidential re lationship bet w een Mrs. Randolph and Mr. Norman. See id. at *3-4. It wa

s Mr. Norman’s co

ntention, however

, that a confidential relationship did not arise until after Mrs. Randolph was declared to be mentally

incapacitated and the power of attorney became effective. See id. at *4. This Court ag reed wit h Mr. Norman, stating that “a power of attorney that has not yet taken effect, and which may be altered or

revoked at any time by the per son granting it

cannot be considered to be unrestricted.” Id. at *5. More recently, in McKinley v. Holt
, No. 03A01-9807-PB-00220, 1999 WL 233400 (Tenn. Ct. App. Apr. 15, 1999), we reaffirmed our holding in Garton , stating as follo ws:

The power of attorney executed by Mr

. McKinley

contained the following restriction: "this power of attorne

y shall become

effe cti ve u pon my di sab ili ty or inc apac ity, which shall be determined by the certification of

my personal

physician, b

ut not until then. . . ." Although appellant argues that an unrestrict ed power of attorney was created, we agree with

the trial court tha

t the power of atto

rney neve r came into

effect because Mr. McKinley

was never cert

ified by his p

hysic ian as d isabled or incapcit ated[sic], and therefore, a confidential relationship as a matter of law did not exist.

Id. at *4.

In t he case at bar,

the power of atto

rney execu

ted by the De

cedent did not con

tain an y restrictions similar to those contained in the powers of attorney executed in Garton and McKinley

. Thus, the power of attorney technically became effective upon its execution by the Decedent. It is undisputed, however, that Ms. Currie had no knowledge of the power of attorney at the time that the De cedent executed her May

1997 will. Without know ledge of the pow

er of attorney

, it w a s impossible

for Ms. Currie to e

xercise the righ

ts granted to her

in the power of at

torney. Ms. C

urrie didnot obtain this knowledge until the eveni ng of Ma y 22, 1997, after the execution of the Decedent’s May 1997 will. As a practical matter, then, the power of attorne

y could not have been exercised by

Ms. Currie when the

Decedent execut

ed her May

1997 will.3 In light of this holding, w e find it unnecessary to address whethe r the court also e

rred in its conclusion that the only

way to show the fairness of the transaction was with proof of independent advice and whether the Decedent did, in fact, receive independent advice f rom Mr. Currie.



### -8- Under the circumstances of the case at bar, where Ms. Currie did not become aware that the Decedent had executed a power of attorney in her favor until after the Decedent executed her May 1997 will, we cannot say, as a matter of law, that there w

as a confidentia

l relationship betw

een Ms. Currie and the Decedent giving rise to the presumption that the Decedent’s May 1997 will wa s procured by the undue influence of Ms. Currie. Rather, we hold that the circumstances of this case represent a narrow exception to the general rule that the execution of an unres tricted power of attorne y creates a c onfidential rela tionship between th

e principal and hi

s or her attorney

-in-fact. 3 The language used in the circuit court’s April 12, 1999 order gr anting Mr. Childress’ motion for a directed verdict and setting aside the jury verdict demonstrates that the court assumed that there was

a confidential re

lationship betwee

n Ms. Currie and the

Decedent and c

onsequentl

y shifted the burden to Ms. Currie to prove the fai rness of the transaction by clear and convincing evide nce. Because,

as indicated above, there was not such a relationship in the case at bar, we reverse the circuit court’s order granting Mr. Childress’ motion for a directed verdict and setting aside the jury verdict.

We next address whether the circuit court also erred when instructing the jury regar ding the issue of undue influence. The court charg ed the jury in pert

inent part as follo

ws:

The allegedwill comes to you with a presumption that

it is brought about by undue influence; that is, as a matter of law an unrestricted power of attorney in and of itself creates a confidential relationship betwe en the parti es. The existence of a confidential relationship follo wed by a tr

ansaction w here the dominant party receives a benefit from the

other party gives

rise to a presumpti

on of undue influe

nce. This presumption can be rebutted by clear and convincing evidence of the fairness of the transaction.

Currie, the proponent of the alleged will, has the burden of showing by clear and convincing evide

nce the fairnes s of the transact ion and the nonexis

t ence o f undue influence.

In the previous section of

this opinion, we held that, because Ms. Currie was unaware at the time that she was the Decede

nt’s attorney-in-

fact, there wa

s not, as a matter of law, a confidential relationship betweenMs. Currie and th e Decedent when the Decedent executed her May 1997 will. Thus, we

now conclude that the trial court erred when instructing the jury regarding the burden of proof in the

cas e at bar. Desp

ite this error, however, the jury returned a verdict in favor of Ms. Currie, specifically

finding that Ms. Currie had proven the fairness of the transaction and

the nonexistence of undue influence at the time that the Decedent executed the May 1997 will. Thus, we conclude that any error with respect to the instructions given to the jury was harmless.

### -9-

Because it was predicated on an erroneous conclusion of law, we reverse the circuit court’s April12, 1999 order and reinstate the jury verdict in favor of Ms. Currie. Cost s on appeal are

ass ess ed ag ain st B ill y Joe Chi ldr ess , fo r wh ich exe cut ion may i ssu e if nece ssa ry.