IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 20, 2011 Session

IN RE ESTATE OF HOMER P. NORTON

Appeal from the Circuit Court for Sevier County

No. 2009-0937 Hon. Ben W. Hooper, II, Judge

No. E2010-02304-COA-R3-CV-FILED-FEBRUARY 23, 2012

This lawsuit was filed by the decedent’s nephew and the nephew’s wife alleging that the

caretakers of the decedent improperly influenced him to change his will. The proponents of

the decedent’s will filed a motion for summary judgment, asserting that no confidential

relationship existed between the decedent and the caretakers in regard to the will. The trial

court granted the proponents’ motion, finding that proof of a confidential relationship was

necessary to pursue a will contest on the ground of undue influence, and that no such

confidential relationship existed between decedent and the caretakers. The contestants

appeal. Finding no reversible error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

JOHN W. MCCLARTY,J., delivered the opinion of the Court, in which HERSCHEL P. FRANKS,

P.J., and D. MICHAEL SWINEY, J., joined.

G. Kevin Hardin, Knoxville, Tennessee, for the appellants, George C. Norton and Teresa R.

Norton.

Dale C. Allen and Luis C. Bustamante, Knoxville, Tennessee, for the appellees, Barbara W.

Boots, Personal Representative; Jimmy Carl Norton, Robert Norton, Clerlinda Mynatt, Joan

Hill, Personal Representative of the Estate of L.C. “Jack” Hill; John Wesley Hill, First

Methodist Church of Sevierville, Tennessee.
OPINION

I. BACKGROUND

This appeal involves a will contest. Contestant George C. Norton (“GCN”) is an heir

of Homer P. Norton (“Decedent”), who died on April 22, 2009, leaving a will dated

December 18, 2007. In his will, Decedent left all his stock in Citizens National Bank

(“Citizens”) and half his residuary estate to GCN’s brothers, Jimmy Carl and Robert Norton,

and his sister, Clerlinda Norton Mynatt; the balance of the residuary estate was left to his late

wife’s brother and two of her nieces and nephews (collectively, “Proponents”). Decedent

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left a life estate in a farm in Blount County to GCN, with the remainder interest to the

residuary beneficiaries.

GCN contends that Decedent intended for him to inherit the estate and that he would

have inherited it if the last will was declared invalid, as he was a beneficiary of the January

29, 2004, May 25, 2005, and July 26, 2005 wills of Decedent. Contestant Teresa R. Norton

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(“TRN”), GCN’s wife, asserts that she was a residuary beneficiary of wills dated May 25 and

July 26, 2005. GCN and TRN (collectively, “Contestants”) claim that they enjoyed a long

and loving relationship with Decedent. They note that for years, they would visit with

Decedent and his wife practically every Sunday and holidays. GCN claims that Decedent

was “like a daddy” to him and favored him in every way. TRN notes that she helped

Decedent’s wife and the Decedent at any time during the week if asked. In regard to

Decedent’s farm, GCN relates that he cared for it, paid a number of expenses out of pocket

to maintain it, and performed all the labor for free. According to Contestants, until two days

before the death of Decedent’s wife, GCN’s brothers and sister rarely visited.

Contestants allege that the 2007 will is invalid because it was the product of undue

influence allegedly exercised over Decedent by caretakers Tina Panaro Gergurich, Carolyn

Reagan, Wanda Ramsey, and Diane Baker. According to GCN, the caretakers “seemed [like]

they didn’t want us around.” He claims that the caretakers took away Decedent’s

“independence and privacy.” TRN asserts that the caretakers, especially Gergurich, “said

things about [her] that were not true.” She relates that she was accused of calling health

department officials regarding the quality of care being provided by the caretakers, inquiring

about Decedent’s finances at the bank, and generally meddling in Decedent’s affairs.

The approximate amount of the estate available for distribution is $5,360,845.14. 1

Decedent’s will dated May 25, 2005, provided that 80% of his estate would go to GCN and 20% 2

to TRN (at the time, not yet GCN’s wife).

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On April 6, 2010, Proponents filed a motion for summary judgment asserting (1) that

Contestants could not establish an essential element of their claim at trial, and (2) that

Proponents had affirmatively negated an essential element of the non-moving party’s claim.

Specifically, Proponents asserted that Contestants were unable to establish that there was a

confidential relationship between the Decedent and any other person and that Proponents had

affirmatively negated Contestants’ claims to that effect.

To substantiate their claim of undue influence, Contestants presented the affidavits

of other caretakers who had worked in Decedent’s home. Louray Tipton testified that when

she worked for Decedent, Gergurich would kiss and rub on Decedent, who greatly enjoyed

the attention. Ms. Tipton observed that Decedent would not talk to her after Gergurich

arrived for work. She noted that Decedent would call Gergurich at home. According to Ms.

Tipton, Gergurich stopped TRN from taking Decedent to medical appointments as had been

the previous practice. She noted that Gergurich and TRN engaged in arguments. It was Ms.

Tipton’s opinion that Gergurich’sinfluence and control over Decedent resulted in a complete

change of the relationship between Contestants (particularly TRN) and Decedent. Ms.

Tipton further accused Baker of engaging in activities to arouse Decedent and opined that

Decedent also had an emotional attachment to Baker. According to Ms. Tipton, Decedent

loaned money to Baker. Ms. Tipton testified that Decedent was not receptive to her

complaints about the poor care being given to his wife.

In another affidavit, caretaker Betty R. Sands described threatening treatment of

Decedent’s wife by Gergurich. She observed that Gergurich, in front of Decedent’s wife,

would flirt with Decedent by sitting in his lap, rubbing his head, shoulders, back and body,

and smile and banter with him. She opined that Decedent and his wife treated GCN and

TRN as if they were their own children. Ms. Sands stated that she never saw any of GCN’s

siblings visit and related that Decedent told her, “They don’t ever come around.” According

to Ms. Sands, she was fired by Gergurich after she administered CPR to Decedent’s wife and

took her to the hospital. Decedent’s wife died shortly thereafter.

Connie Adams, another caretaker, testified by affidavit that Reagan would almost

choke Decedent’s wife when feeding her, and would talk to wife using a hateful tone and

demeaning manner. She observed that Reagan gave unprescribed dosages of medications

and poured wife’s protein shakes down the drain. Ms. Adams stated that Decedent would

not listen to her concerns about Reagan. She opined that Decedent had an emotional

attachment to Reagan and that Reagan had Decedent “wrapped around her little finger.” Ms.

Adams observed that Decedent was very proud of GCN and thought of him as a son.

Proponents presented affidavits from individuals who had known and worked with

Decedent in personal and business matters for many years who confirmed that he was a

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competent, engaged businessman up to the end of his life. Contestants likewise admitted that

Decedent was responsible, independent minded, in control of his own affairs, and capable

of making his own decisions. They acknowledged that Decedent’s competence and

independence were exhibited by the fact that from the creation of Citizens, he was a bank

director who regularly attended Board meetings until the month of his death. Contestants

further noted that Decedent had access to independent professional advisors and attorneys

who assisted him in the consideration and preparation of a revised estate plan during the final

years before his death. David Verble, the President and Chief Executive Officer of Citizens,

who had known Decedent for more than 30 years, recalled that Decedent came to him

regarding his estate concerns. In order to best guide Decedent, Mr. Verble thereafter

introduced him to Jim Shelby and Daniel Carter, employees and trust officers of the Trust

Company in Knoxville in March 2007. Mr. Shelby testified that Decedent “wished to alter

his estate plan to limit gifts and bequests to [GCN] because of his concern that all of his

assets could pass outside the Norton family.” Mr. Carter recalled that Decedent “expressed

concerns with his then existing estate plan because under the plan all of his assets were to

pass to his nephew, [GCN], and he was concerned that at [GCN]’s death a majority of

[Decedent’s] estate would pass to [TRN] . . . and as such, the assets for which [Decedent]

had worked a lifetime to establish would pass outside the Norton family.” Mr. Shelby and

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Mr. Carter related that they both counseled with Decedent and ensured that he had access to

an independent attorney, Dale Allen, who would revise his estate plan pursuant to his wishes.

In fact, Mr. Shelby noted that he met with Decedent three times. In June 2007, Decedent

also met with attorney Randy Sykes of the Sevierville Bar, for the purpose of changing his

power of attorney, as he had appointed GCN his attorney-in-fact for business affairs in May

2005, July 2005, and October 2006. Mr. Verble and Janice Whaley, a longtime Citizen’s

employee, noted that Decedent expressed to them the desire to remove GCN as his attorneyin-fact because he felt both GCN and TRN were interfering in his personal business. Ms.

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Whaley subsequently served as Decedent’s attorney-in-fact until his death. According to Ms.

Whaley, as Decedent’s attorney-in-fact, she consulted and conferred with him many times

regarding his business and personal affairs. Based on her weekly communications and

meetings with Decedent, Ms. Whaley opined that he remained competent during his lifetime

and did not appear to be subject to the influence or control of any other person.

On September 29, 2010, the trial court entered an order granting Proponents’ motion

for summary judgment, holding that as a matter of law, proof of a confidential relationship

was necessary to pursue a will contest on the ground of undue influence. The court held that

TRN is approximately 24.5 years younger than GCN, thus it would be reasonable for Decedent to 3

expect that TRN would survive her husband.

TRN had been an attorney-in-fact from May 2005 until October 2006. 4

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no such confidential relationship existed “between Decedent and anyone else.” As a result,

the trial court declared that the Decedent’s will dated December 18, 2007, was valid.

Contestants perfected this appeal.

II. ISSUES

The issues presented by the Contestants are restated as follows:

1. Whether the trial court erred as a matter of law in granting summary

judgment in favor of the Proponents finding that proof of a confidential

relationship is a prerequisite to the pursuit of a will contest on the grounds of

undue influence.

2. Whether the trial court erred in determining that no confidential relationship

existed between Decedent and any other persons such that the December 18,

2007 will admitted to probate was not the Decedent’s free and independent act.

III. STANDARD OF REVIEW

Our Supreme Court in Giggers v. Memphis Housing Authority, 277 S.W.3d 359

(Tenn. 2009), reviewed this state’s summary judgment standard:

The scope of review of a grant of summary judgment is well established.

Because our inquiry involves a question of law, no presumption of correctness

attaches to the judgment, and our task is to review the record to determine

whether the requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d, 50-51 (Tenn.

1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

A summary judgment may be granted only when there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law.

Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The

party seeking the summary judgment has the ultimate burden of persuasion

“that there are no disputed, material facts creating a genuine issue for trial . .

. and that he is entitled to judgment as a matter of law.” Id. at 215. If that

motion is properly supported, the burden to establish a genuine issue of

material fact shifts to the non-moving party. In order to shift the burden, the

movant must either affirmatively negate an essential element of the

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nonmovant’s claim or demonstrate that the non[-]moving party cannot

establish an essential element of his case. Id. at 215 n. 5; Hannan v. Alltel

Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are

not sufficient to shift the burden to the non-moving party. Byrd, 847 S.W.2d

at 215; see also Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our

state does not apply the federal standard for summary judgment. The standard

established in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588

(Tenn. 1998),sets out, in the words of one authority, “a reasonable, predictable

summary judgment jurisprudence for our state.” Judy M. Cornett, The Legacy

of Byrd v. Hall; Gossiping About Summary Judgment in Tennessee, 69 Tenn.

L. Rev. 175, 220 (2001).

Courts must view the evidence and all reasonable inferences therefrom in the

light most favorable to the non-moving party. Robinson v. Omer, 952 S.W.2d

423, 426 (Tenn. 1997). A grant of summary judgment is appropriate only

when the facts and the reasonable inferences from those facts would permit a

reasonable person to reach only one conclusion. Staples v. CBL & Assocs.,

Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this Court

must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 363-64 (Tenn. 2009). Accordingly, “[t]he

moving party must either produce evidence or refer to evidence previously submitted by the

nonmoving party that negates an essential element of the nonmoving party’s claim or shows

that the nonmoving party cannot prove an essential element of the claim at trial.” Martin v.

Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citing Hannan, 270 S.W.3d at 5). If the

moving party does not carry its initial burden, the nonmoving party has no obligation to

produce evidentiary materials in support of its position. Id. (citing McCarley, 960 S.W.2d

at 588, Byrd, 847 S.W.2d at 215).

IV. DISCUSSION

Contestants essentially assert that the caretakers poisoned their relationship with

Decedent to the extent that Decedent changed his will. According to Contestants, the 2007

will was signed at a time when Decedent was in an emotionally distraught state shortly after

his wife had died. They contend that the collective actions of the caretakers, upon whom

Decedent had become dependant, resulted in Decedent completely rewriting his longexpressed estate plan. Contestants claim the terms of the 2007 will are unjust and unnatural

when compared to Decedent’s previous wills, as they went from being 100 percent

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beneficiaries of a large estate to GCN receiving only a life estate in a farm.

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Contestants do not claim that Proponents had anything to do with Decedent revising

his estate plan or that any of them exerted undue influence over Decedent. None of the

accused caretakers was named a beneficiary pursuant to the will.

Contestants assert that the affidavits, interrogatory responses, and deposition

testimony submitted demonstrate that Proponents have failed to negate an essential element

of their claim of undue influence, or to show that Contestants cannot prove an essential

element of their claim at trial. Therefore, they argue that the burden of production has not

shifted to them. Contestants argue that even if the shift occurred, the record is replete with

examples of genuine issues of material fact in dispute. Thus, Contestants submit that

summary judgment was improperly granted.

A valid will is a product of the free exercise of independent judgment by a person who

has the mental capacity to make a testamentary disposition. In re Estate of Elam, 738 S.W.2d

169, 171 (Tenn. 1987). As a general rule, it is presumed that undue influence does not enter

into the making of a will, and the burden of proving undue influence falls on the person

contesting the will. Hammond v. Union Planters Nat’l Bank, 222 S.W.2d 377, 383-84 (Tenn.

1949).

The trial court in this matter properly observed that proof of a confidential relationship

is required to establish undue influence. The doctrine of undue influence is applicable only

where there is a confidential relationship with the testator whereby one party is able to

dominate and exercise undue influence over the testator. In re Estate of Brevard, 213 S.W.3d

298, 302 (Tenn. Ct. App. 2006) (citing Keasler v. Estate of Keasler, 973 S.W.2d 213, 219

(Tenn. Ct. App. 1997); Simmons v. Foster, 622 S.W.2d 838, 840 (Tenn. Ct. App. 1981)). A

confidential relationship is that relationship where confidence is placed by one in the other

and the recipient of that confidence is the dominant personality, with the ability, because of

that confidence, to influence and exercise dominion over the weaker or dominated party.

Bills v. Lindsay, 909 S.W.2d 434, 440 (Tenn. Ct. App. 1993). In general terms, it is any

relationship that gives one person the ability to exercise dominion and control over another.

Kelley v. Johns, 96 S.W.3d 189, 197 (Tenn. Ct. App. 2002). “The burden of proof regarding

a confidential relationship rests upon the party claiming the existence ofsuch a relationship.”

Interestingly, the record reveals that Decedent’s 2000 will also gave GCN a life estate in the farm. 5

Additionally, Decedent’s 2004 will gave part of the estate to GCN and the remainder to Jimmy Norton. 

Proponents assert that giving GCN a life estate in the farm so he could continue to use it for his lifetime is

not inconsistent with any statement by Decedent that GCN would be a beneficiary of his estate.

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Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002).

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Confidential relationships generally arise in two situations: (1) “legal relationships”

and (2) “family and other relationships.” Estate of Brevard, 213 S.W.3d at 302-03 (quoting

Matlock v. Simpson, 902 S.W.2d 384, 385-86 (Tenn. 1995)). In the “legal relationships”

context, a confidential relationship arises when there is some legal connection between the

dominant party and the weaker party, such as when a dominant party is granted a power of

attorney. This type of relationship is confidential per se. Id. “Family and other

relationships” are not confidential per se - to establish a confidential relationship in this

situation, contestants must prove the elements of “domination and control” in order to

establish that the free will of the weaker party has been destroyed and the will of the

dominant party has been substituted. Matlock, 902 S.W.2d at 385-86. To establish undue

influence, in addition to proving that a confidential relationship exists, contestants must

prove that through the confidential relationship, suspicious circumstances exist suggesting

the will did not occur as a result of the testator’s free and independent actions. Estate of

Hamilton v. Morris, 67 S.W.3d 786, 792 (Tenn. Ct. App. 2001).

Undue influence is rarely proven by direct evidence, and Contestants concede that

they have no direct evidence that the caretakers exercised any undue influence over Decedent

with respect to the will. Without direct evidence, a person contesting a will must prove the

existence of more than one suspicious circumstances warranting a conclusion that the

testator’s will does not represent the testator’s free and independent act. Halle v.

Summerfield, 287 S.W.2d 57, 61 (Tenn. 1956); Kelley, 96 S.W.3d at 195; Estate of Hamilton,

67 S.W.3d at 792; Fell v. Rambo, 36 S.W.3d 837, 847 (Tenn. Ct. App. 2000). The

suspicious circumstances often relied upon to establish undue influence are: (1) the

existence of a confidential relationship between the testator and the beneficiary; (2) the

testator’s physical or mental deterioration; and (3) the beneficiary’s active involvement in

procuring the will. Elam, 738 S.W.2d at 173. Other recognized suspicious circumstances

include: (1) secrecy concerning the will’s existence; (2) the unjust or unnatural nature of the

will’s terms; (3) the testator being in an emotionally distraught state; and, (4) discrepancies

between the will and the testator’s expressed intentions. Mitchell v. Smith, 779 S.W.2d 384,

388 (Tenn. Ct. App. 1989). Generally, there is no prescribed type or number of suspicious

circumstances that must be found to invalidate a will.

The confidential relationship does not need to involve a beneficiary, however, as

undue influence may be exercised by one other than a beneficiary. DeLapp v. Pratt, 152

In Estate of Brevard, 213 S.W.3d at 302 n. 5, we addressed the contention that a presumption of 6

undue influence can arise even in the absence of a confidential relationship. We observed that the greater

weight of authority requires a confidential relationship.

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S.W.3d 530, 542 (Tenn. Ct. App. 2004); Estate of Glasgow v. Whittum, 106 S.W.3d 25, 31

(Tenn. Ct. App. 2002). “Confidential relationships can assume a variety of forms, and thus

the courts have been hesitant to define precisely what a confidential relationship is.” Kelley,

96 S.W.3d at 197 (citing Robinson v. Robinson, 517 S.W.2d 202, 206 (Tenn. Ct. App.

1974)). We have noted that a “fiduciary relation may be any kind which implies confidence,

as trustee and beneficiary, attorney and client, parent and child, guardian and ward, physician

and patient, nurse and invalid, confidential friend and adviser, indeed, any relation of

confidence between persons which gives one dominion or influence over the other.” Roberts

v. Chase, 166 S.W.2d 641, 650 (Tenn. Ct. App. 1942). As we noted in Estate of Glasgow:

It is immaterial whether undue influence is exercised directly or indirectly. In

determining whether undue influence is present, a central focus is on the

means used and the effect upon the donor. The underlying theory of the

doctrine is that the donor is induced by various means to execute an instrument

that, in reality, is the will of another substituted for that of the donor. We

specifically reject the contention that a beneficiary must be the one who exerts

the undue influence.

Estate of Glasgow, 106 S.W.3d at 31.

Upon review of the record before us, we find that the affidavits, interrogatory

responses, and depositions relied upon by Contestants are not sufficient to establish the

existence of a confidential relationship between the caretakers and Decedent at the time he

executed his will. By Contestants’ own admissions, the Decedent was independent-minded

and a competent businessman, not subject to influence by anyone in his business or personal

decisions. Contestants’ admissions are confirmed by Decedent’s long-time business

associates.

As established by Proponents, Decedent availed himself of independent professional

advice and counsel in the preparation of his will. Prior to, at the time of, and following the

execution of his will in December 2007, the Decedent had the benefit of independent counsel

and advice from no less than five unrelated, objective professionals. None of Decedent’s

caretakers was present at the meetings at which Decedent and his professional advisors

discussed the changes Decedent wished to make to his estate plan. An independent attorney

drafted Decedent’s will and assisted him in executing it. All of Decedent’s professional

advisors were competent and well-respected in the community; none of them was in any way

associated with any of Decedent’s caretakers or with any of the beneficiaries of Decedent’s

will. Based upon the proof that the Decedent was an independent-minded person, notsubject

to influence by outsiders, and given the fact he met on a number of occasions with

independent professionals, even if Contestants could establish the existence of a confidential

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relationship, the testator’s receipt of independent advice would rebut the inference or

presumption of undue influence that arises upon the proof of a confidential relationship. See,

e.g., Richmond v. Christian, 555 S.W..2d 105, 107-08 (Tenn. 1977).

Because Proponents have negated Contestants’ claim that there was a confidential

relationship between the Decedent and any other person, Contestants’ undue influence claim

must fail. Consideration of other alleged suspicious circumstances is unnecessary. We

therefore uphold the trial court’s grant of summary judgment in favor of Proponents.

V. CONCLUSION

The judgment of the trial court is affirmed and this case is remanded. The costs on

appeal are assessed against the appellants, George C. Norton and Teresa R. Norton.

_________________________________

JOHN W. McCLARTY, JUDGE

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