### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON Ma y 18, 200 5 S es sio n

IN R E EST ATE OF JEWELL T UR NER , D eceased

JO HN L E 

### CORNU

v. D OL OR ES A R C HI E AND 

### FR EDE CL EME NTS

An Appeal f

romthe P robate C ourt for Madison Cou nty No. 03-12852 Christy R . Little, Judge

No. W2004-02123-C OA-R3-C V - F iled Augu st 30, 2005

T h i s i s a will contest. I n May 2002, the dec edent ha d a stroke at ag e ninety -five. She ha d no children, a nd the pl aintiff nephew and the defendant niece a nd defe ndant nephe w took over he r ca re. The thre e p ar t i es established a conser vatorship, bec ame c o-conse rvators, a nd place d the dec edent in a loc a l nu rs ing ho me . L a te r, the pa rt ie s a g re e d to mov e the de c e de nt t o a nu rs ing ho me c los e r t o the d e f e n d a n t s

. S o o n a f

t e r t h e m o v e , w i t h o u t i n f o r m i n g t h e p l a i n t i f

f
, t h e d e f e n d a n t s b r o u g h t a lawy er to the de cede n t s o t h at she c ould draft a last will and testament. I n October 2003, the de c e de nt d ie d. Th e de c e de nt’ s w ill le ft he r $ 55 0, 00 0 r e sid ua

ry e state to the de fe nd a nts , an d le ft on ly
tw o p ie c e s o f f

ur nitur e to the pla int if

f. Th e pla int if

f f ile d th e inst ant pet iti on to c on te st the wi ll, al leg ing that the dece dent was unduly influence d by

the def endants. Af

ter a bench trial, the trial court uphe ld the will, concluding that the burde n of proving undue influence had not been me t. The plaintiff now appe als. We aff irm, finding that the evidenc e supports the trial court’s finding that the dece dent re ceive d independe nt advice in the dr afting of her will.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e P robate C ourt is Aff irm ed

H OL L Y M. K I RBY , J.
, d e li v e r e d th e o p in io n o f th e Co u r t, in w h ic h W. F RAN K C RAW FORD , P.J
., W.S
., and D AVI D R. F ARMER , J ., joined.

L arry A. B utler and Lisa A. Houston, J ackson, Te nnessee , for the a ppellant, J ohn L eCornu.

J esse H. F ord, I I I , J ackson, Te nnessee , for the a ppellees, D olores Ar chie a nd Fr ede Cleme nts.-2- OP IN ION

J ewe ll Turn er (“ d ec edent”), the de cede nt involved in this action, is the aunt of Pl ai n t i ff / Ap p el l an tJ o h n L eC o rn u (“LeCornu”) and De fenda nts/Appellees Dolore s Archie(“Archie ”) and Frede Clements (“Clements”) (collec tively , “def endants” ). Sometime be fore May 2002, when she wa s ninety -five y ear s old, the dece dent suffe red a stroke which resulted in dementia. Since the dece dent had no children of her own, the parties in this action assumed r esponsibilityfor he r ca re. The de cede nt was t hen moved from her home i n J ackson, Te nnessee , to a nursing home in J ackson.

On May 14, 2002, plaintiff L eCornu and the defe ndants jointly filed a pe tition i n the g ener al

se ssi on s c ou rt to es ta

bli sh a c on se rv a tor sh ip fo r the de c e de nt. I n th e g e ne ra l se ssi on s p ro c e e din g s, the dece dent was he ld to be incompetent, and L eCornu and the defe ndants wer e appointed a s her c oconser vators.

Soon therea fter, a

dispute arose among the co- conser vators re g arding wher e th e decede nt should reside. L eCornu lives i n An napolis, Mary land, and the de fenda nts live in Greenf ield, Te nn e sse e . T he de fe nd a nts wa nte d to ha ve the de c e de nt m ov e d f ro m th e Jac ks on nu rs ing ho me to

a nu rs ing ho me in M art in, Te nn e sse e , w hic h w a s clo ser to the de fe nd a nts . L e Cornu ob je c te d to moving th e d e c e d e n t u n le s s h e r p h y s ic ia n s ap p r o v e d o f

th e mo v e

. T h e d e c e d e n t’ s p h y s ic ia ns ini tia lly sai d th at mov ing the de c e de nt t o a no the r n ur sin g ho me wo uldno t be in h e r b e st i nte re st. L e Cornu and th e de fe nd a nts c on tin ue d to dis a g re e , s o a g ua rd ia n a d li te m w a s a

pp oin te d to determine whether

moving to the Ma

rtin nursing home would be in the decedent’ s best interest. The
g ua rd ia n, Cha

rl e s E xum ( “ Exum ” ), fo un d th a t th e mov e wo uldno t be de tr ime nta l to the de c e de nt, that it w o u ld p la c e h e r c lo s e r to th e d e f e n d a n ts , a n d th a t it w o u ld b e le s s e xp e n s iv e

. L ater , the de c e de nt’ s p hy sic ia ns c ha ng e d th e ir po sit ions a ndde c ide d th a t th e mov e wo uldno t be ha rm fu l to the dec edent. Eve ntually , the parties all ag ree d to move the dec edent to the nursing home in Martin.

Soon after the move, on Dec embe r 24, 2002, Arc hie wrote L eCornu an e -mail sug g esting that the dec edent’ s conser vatorship be terminated, expressing conce rn that the c ost involved would “ea t up [t he dec edent’ s] saving s.” She felt that dissolving the c onserva torship would make it easie r on all of them, and sug g ested that they all “just ag ree to sha

re [i n her estate] equally .” L eCornu opposed dissolving the conse rvatorship, so no such a g ree ment was re ache d.

Subsequent l y , wi t h o u tL eC o rn u ’s k n o wl ed ge, t h e d ef en d an t s hired a

n attorney , Susan Colli ns (“Collins”), to meet with the dec edent in the nur sing home in order to he lp the dece dent make he r L ast Wil l and Testame nt ( “Will”). Colli ns require d that the def endants obtain a

medical state ment verifying that the dece dent had the testamentary capa city to ma ke a Wil l. O n Fe bruary

11, 2003, a
psy cholog ist, Tony

Fr anklin, Ph.D. (“Dr . Fr anklin”), c onducted a mental status e x amination of the dece dent, and he opined that she was capa ble of making decisions on her own beha lf. On Mar ch 14, 2003, a psy cholog ical examiner, Gary Smit hson (“Smithson”), also conducte d a mental e x amination of the de cede nt and opined that she w as competent and of sound mind. These e x aminations were perf ormed without L eCornu’s knowle dg e, thoug h he wa s still a co- conser vator for the dec edent.-3-

There afte r, in April and Ma y 2003, Colli ns met with the decedent on four occasions. At the first meeting , the defe ndants introduced Collins to the dece dent, and then Collins was left to spea k

a lon e wi th the de c e de nt. At the se c on d me e tin g , the de fe nd a nts we re pr e se nt a nda dr a ft of the Will

was re ad to the dec edent, but the de cede nt did not si g n the Will at t h at t i m e. L ater , the Will was chang ed to name the defe ndants as t he beneficia ries of her residuary estate, w hich was w orth about $550,000 at that time, o r ab o u t eig hty -five pe rce nt of the entire estate. The Wil l left L eCornu a buffe t and a g old-fra med m irror. On M ay 2, 2003, the decedent ex ecute d the Will in the prese nce of Collins and two witnesses, but not in the presenc e of the defe ndants.

On Octobe r 1, 2003, t he decede nt died. Two day s later, the defe ndants filed the Will in t he Probate division of the Ge nera l Sessions Court below. On November 17, 2003, the defendants filed a Motion for Appointment of Co-Executors. On D ece mber 19, 2003, L eCornu f i l ed the inst ant complaint to contest the Will , alleg ing that i t wa s p ro cure d by the def endants throug h undue influence

. On J anuary 14, 2004, the t rial court reje cted the defe ndants’ petiti on to be appointed a s

c o

- e xe c u to r s a n d in s te a d ap p o in te d Ch ar le s E xu m, th e g u ar d ia n a d li te m ap p o inted in the

conser vatorship, as the pe rsonal re prese ntative of the e state.

On July 26
, 20 04
, the tr ia l c ou rt

c on du c te d a

be nc h tria l on L e Cornu ’s wi ll c on te st. Pr ior to trial, the def

endants stipulated that they had a c onfi d en t i al relationship wit h the dec edent. Muc h

e vid e nc e wa s su bmi tte d a t tria l on the iss ue of wh e the r the de c e de nt ha d th e te sta me nta ry c apa c ity to execute the Will. C ollins t estified at tria l. As backg round, Collins said that she became f amiliar wi th the de fe nd a nts by

dr a ft ing a

wi ll f or Ar c hie ’s mot

he r, the de c e de nt’ s si ste r Ste lla

. Ar c hie tol d Colli ns that the dece dent was under a conser vatorship, but Colli ns could not rec all whether she wa s told that L eCornu wa s a co-c onservator. Be fore she would undertake the dr afting of the de cede nt’s Wil l, Coll i n s re q u i re d a letter from the de cede nt’s phy sician stating that she wa s competent. The defe ndants g ave he r two letters, one eac h from Dr

. Kenne th Carr (“Dr

. Carr” ), t he medical direc tor of the Ma rt in n ur sin g ho me , a ndDr . Frankl in, bo th s ta tin g that th e de c e de nt h a d th e re qu isi te testamentary

capa city

.

I n o rd e r t o d ra ft

a ndfi na lize the Will, Col lin s me t wi th the de c e de nt f ou r t ime s. Col lin s sa id that, when she first met the decedent, both of t he defenda nts were prese nt, but that they left the room when Collins and the dec edent be g an to discuss the Will . The de cedent was in a w heelc hair a nd used a he aring aid. To communicate with the dece dent, Collins had to speak into a specia l hear ing device with a microphone . The de cede nt did not mention t o C o l l i n s that she was unde r a

conser vatorship. S he commented that Arc hie and Clements “took care of her business,” but did not mention L eCornu in that contex t. When Colli ns asked the dece dent about her family , she identified Ar c hie a s the daug hte r o f h e r d e c e a se d s ist e r S te lla , L e Cornu a s th e so n o f h e r d e c e a se d s ist e r M abe l, and Clements as the son of another of her sisters whose na me Collins could not recall. The de cede nt forg ot the name of Arc hie’s son, but described hi m as t he person who “worked for the I RS and . . . had something wrong with his arm.” When asked about her assets, t he decede nt told C ollins t hat she had a bout $400,000 in CDs, a house in J ackson, Tennessee worth between $80,000 and $90,000, and a house in Gree nfield, Tennessee worth about $40,000. S he noted that Clements took ca re of the house in Gre enfie ld for her

.-4-

Fr om he r first meeting with the dece dent, Colli ns testified, she was convinced t h at the dece dent had testa mentary capa cit y , b eca

use she kne w about her

assets and c ould identify the “natur al objects of her bounty .” Arc hie had g iven Colli ns a list of assets, which Collins read to the dece dent. The dece dent told Collins e x actly what piece s of property she wanted to lea ve to which benef iciarie s. She devised to L eCornu a buffe t a nd a mirror. She also asked tha t her late husband’s cloth es and books be g iven to her la te husband’s ne phew. Collins remarke d that the dec edent’ s

me mory wa s “ [a]ma zing

. . . . I ’m no t su re I

wo uldha ve re me mbe re d a s well wha t Iha ve in m y ho us e .” Ne xt, th e de c e de nt t oldCol lin s th a t sh e wa nte d to g ive a cash beq ue st t o th e de fe nd a nts

. Colli ns asked, “ What a

bout Mabel’s son John [ L eCornu]? ” The dece dent re sponded, “I ’ve a lrea dy left him something. . . . That’s it

. That’s what I ’m leaving him.” Colli ns testified that the dec edent tol d h e r tha t L e Cornu ha d ta ke n a n u ns pe c if

ie d a mou nt of mon e y fr om he r in the pa st, a ndthat “ if he turne d up with a will . . . it was no g ood.”

Th e de c e de nt c on sid e re d ma kin g a be qu e st t o tw o c hu rc he s. Whe n d isc us sin g a po ssi ble devise to the churc hes, the dece dent asked Colli ns how much the churc hes would g et if they share d in the residuary

estate. Collins told her that, depending on how long she lived, they might g et very littl e, or the y

might g et hundre ds of thousands of dollars. Collins said that the dec edent “ understood that the spec ific bene ficiaries would come in be forethe re sidue.”

Colli ns said that two assistants in her off ice, B ever ly

Parham (“ Parham” ) and Winniford V o w e l l ( “ V o w e l l ” )
, w e n t w i t h h e r t o t h e s e c o n d m e e t i n g w i t h t h e d e c e d e n t , i n o r d e r fo r t he m to wi tne ss the e xec uti on of

the Will. Ar c hie a ndCle me nts we re pr e se nt at th is m e e tin g . Colli ns sa id that she normally

pref ers to ha v e o n l ythe testator in the r oom, but the dece dent told her that the de fe nd a nts c ou ld s ta y . B e c a us e the de c e de nt c ou ld n ot s e e well eno ug h to re a d th e dr a ft Will, Colli ns rea d it aloud to her. Arc hie aske d the dec edent if she understood what Collins was say ing and what she was sig n i n g. C o l l i n s ’ “gut fe eling was that she w as not totally comforta ble,” that
p e rh ap s s h e w a s n e r v o u s

. C o l l i n s f e l tt h a tt h e d e c e d e n tw a s n o t r e a d y t o s i g n t h e W i l l o n t h a td a y. There fore , Colli ns, Parham, and V owell left to re turn another time.

After that first rea ding of the W ill, C ollins t estified, the de cede nt made a numbe r of c hang es to it. She chang ed the amounts that she wa s leaving to certain persons, a dded a be quest to the animal sh e lte r, a nda dd e d o the r c hu rc he s a s b e ne fi c iari e s. Col lin s d e sc ri be d it a s a “ de ta ile d” Will. Significa ntly , on April 30, 2003, the dece dent made the def endants the r esiduary

benef iciarie s of her

e state . T he re a ft e r, on Ma y 2, 20 03
, Col lin s a nd he r a ssi sta nts vis ite d the de c e de nt, a nd a t that ti me she executed the Wil l. The defe ndants wer e not pr esent at this fina l r eading of the Wil l. The final

ve rs ion of

the Will i nc luded a “han dful of sp e c if ic c ha ri ta ble be qu e sts ,” a ndthe re st o f the e state went to the def

endants. At that mee ting, the de cede nt asked Collins to keep her Will in her of fice and to n o t l e t a n y o n e k n o w ab o u t i t u n ti l a f te r s h e h a d d ie d

. A lth o u g h Co ll in s n o r ma ll y c h arg ed $1 50 pe r Wi ll, sh e did no t sen d a bill to the de c e de nt’ s co- c on se rv a tor s, be c a us e se nd ing a bil l w ou ld have a lerted the co-c onservators that a will ha d been completed. After the dec edent’ s death, Collins testified, she did not file a claim ag ainst the dece dent’s estate beca use she had “bec ome very fond of Ms. Turner

. I f I never g ot paid, i t would be all rig ht. And Iwas much more conce rned a bout the-5-

fac t that I had an attorney

/client rela tionship wit h her . . . . I f it took not ge tting paid, then that’s okay with me.”

Col lin s te sti fi e d s he ha d n o c on c e rn s a bo ut w he the r the de c e de nt w a s c omp e te nt to e xec ute a will. She stated that the de cede nt “had a very g ood g rasp of” wha t she owned a nd to whom she

was re lated, and that she asked a ppropriate questions. Colli ns observe d that the dec edent’ s questions to her re g arding her r esiduary estate w ere clea

r and a ppropriate

.

Vowell and Parham, Colli ns’s assistants, a lso te stified at trial. They both sai d t h at the de c e de nt a

pp e are d c omp e te nt t o ma

ke a wi ll. Vo we ll d e sc ri be d th e de c e de nt a s ta lkativ e , c oh e re nt, and polite, and sa id that she discussed with them cur rent ev en t s t h at s he had le arne d of fr om

w a t c h i n g t e l e v i s i o n

. V o w e l l t e s t i f i e d t h a ts h e h a d n o p r o b l e m w i t h t h e d e c e d e n t ’ s c o m p e t e n c y. Parham testified that she m et wit h the decedent on three differ ent occ asions, and obser ved that the dece dent was “ up, dresse d, very alert, s h e wa s v er y nice to us.” She a lso commented that the dece dent talked a

bout curre nt events, and said that she seeme d to understand Collins’ expl anations to her. Parha m believed that the decedent “knew what she wante d” and f elt comforta

ble sig ning the Will.

The trial c ourt also hea rd testimony

from Smithson, t he ps y ch o logic al examiner who conducte d a mental e x amination of the de cede nt. Smi thson testified that he met with the dec edent in M arc h 2 00 3 f

or abo ut fo rt y -f

ive min ute s to de te rm ine wh e the r s he wa s c omp e te nt t o ma ke a wi ll. I n that meeting , he eva luated her memory function and he r abili ty

to rea son. He g ave the trial court examples of the questions he asked her and the tasks he asked he r to perf orm. After

the examination, Smit hson conclude d that the dec edent ha d the re quired testame ntary capa city , and that her

cog nitive abilities were intact.

The de fenda nts proffe red the testimony of Andre a McK night ( “McK night” ), the c ertified nurse’ s aide (CNA) who attended to the dece dent in the nursing home. McKnig ht testified that she took car e of the dece dent’s basic needs e very morning . McKnig ht said that she talked wi t h the de c e de nt o n a

da ily ba sis , a ndthat th e de c e de nt d isc us se d h e r f a mil y , h e r forme r hus ba nd s, McKnig ht’s family , and current events. McKnig ht said that the defe ndants ca lled the dec edent a nd visited her, and that others sent flowe rs and c ards. She state d that, in her obser vation, the dec edent ha d n o me mory

pr ob le ms.
Randy Stacy (“Stac y ”), the pastor of Archie’ s churc h, testified that he visited the de cede nt in the nursing home. He said that, on their visits, t hey would talk in depth about politics, relig ion,
t h e w ar , a n d o t h e r

s u b j e c t s

. S t a c y t h o u g h tt h a tt h e d e c e d e n tw a s a v e r y e n j o yab l e , “ s h arp ” l a d y.
Another psy cholog ist, Robert W . Kennon, Ph.D. (“D r. Ke nnon”), a lso testified at trial. Dr Kennon e x amined the de cede nt in May 20 0 2 for the pur

pose of e stablishing the c onserva torship. He sa id that, at the time he sa w h er , she wa s not capa ble of mana g ing he r own a ffa irs. She had

e x p r e s s i v e l a n g u a g e d i f

f i c u l t i e s a n d e x p e r i e n c e d s o m e c o n f u s i o n p r o b l e m s

. H e s t at e d th at , t yp i c a l l y, in that circumstanc e, it would be ea sier to influenc e a stroke victim. He opi n ed that, althoug h a-6-

stroke patient c an re cover phy sically over the first nine months after a stroke, the deep- brain menta l fac ulties affe cted by

the stroke a

re muc h less repa irabl e. Dr

. Kennon r eviewe d the mental status examinations performed by Smit hson and Dr. Franklin. Dr. Kennon questioned whether Smit hson could per form an a

ppropriate evaluation in forty -five minutes, although he admitted it was possible. I t co n ce rn ed Dr. Ke nnon that Smit hson stated that he f ound no hearing de ficienc y , beca use the dece dent’s hea

ring defic iency

was seve re. D r. Ke nnon observe d that Dr. Franklin’s evaluation was

mor e in de pth

. Ho we ve r, in or de r to be lie ve Dr

. F ra nk lin ’s re po rt , Dr

. Ke nn on stated , o ne wou ld have to be lieve that the de cede nt had made a miraculous re covery

from May

2002.

Two friends of the de cede nt, Pam Ba in ( “B ain”) and Evely n J ohnsey (“Johnsey ”), te stified on behalf of L eCornu. B ain indicated that the dece dent was very close to Mabel, L eCornu’s mother
, and said that they

wer e like twins. Ba in said that the dec edent talke d about L eCornu a lot, but mentioned Arc hie only

once or twice. B ain said that t h e d ecedent talked a bout Archie ’s son who beca me a doc tor, and that she me ntioned Clements because he took c are of her house in Gre enfie ld. Ba in testified that the dec edent wa s proud of L eCornu beca use of his ac complishments. L ike B ain, J ohnsey testified that the dec edent talke d about L eCornu on a r eg ular ba sis, but never mentioned Arc hie. She rec alled that the decedent spoke of a nephew who t ook car e of her house in Gr eenf ield. J ohnsey testified that, when B ain ca l l ed her a bout the dece dent’s stroke, she immediately called L eCornu, who “ t o o kover f rom there .” She said that, a fter the dece dent’s stroke, A rchie and Clements went to see he r at the hospital the ne x t day . When J ohnsey spoke to Arc hie, Arc hie aske d he r i f the de c e de nt h a d a

wi ll.

L e Co r n u a ls o te s ti f

ie d a t tria l. H e s a id th a t h e w a s b o r n a n d r a is e d in N a s h ville, and later

serve d twenty -eig ht y ear s in the Marine Corp. After his y ear s in the Marine Corp., L eCornu said, his fa mil y stay e d in A nn apo lis . A t th e tim e of tr ia l, h e wa s w or

kin g a s a pr os e c uto r i n M ary la ndin the state a ttorney ’s offic e. L eCornu said that he had had a very close re lationship with t he dec edent

a ndthat he lov e d h e r v e ry muc h. He no te d th a t th e de c e de nt a nd he r hu sb a ndha d tr a ve le d w ith his
pare nts to his gra duation from the na val ac ademy in 1961, and also to his wedding in Washington D. C. the re a ft e r. L e Cornu te sti fi e d that the de c e de nt a nd his mothe r, the de c e de nt’ s sis te r Ma be l, lived next door to each other . L eCornu commented that he tried to w rite to the dece dent whene ver he could, pa

rticularly on occa sions such as M o t her’ s Day , Thanksg iving, a nd Christmas. As the dece de n t and his mother bec ame older and more fra il, L eCornu said, they require d more involvement from him, albeit from long distance. In 1998, he visited the dec edent f or t en day s to two weeks w hen she had sur g ery

to treat colon canc er. The dece dent rec overe d from her surg ery at Mabe l’s house,

a ndL e Cornu he lpe d g e t he r situa te d a nd arr a ng e d to ha ve sit te rs take c are of the de c e de nt. De sp ite the de c e de nt’ s h e a lth pr ob le ms, Ma be l pr e de c e a se d th e de c e de nt b y tw o y e ars

.

Whe n th e de c e de nt h a d h e r s tr ok e in Ma y 20 02
, L e Cornu tr a ve le d to Te nn e sse e to b e wi th her. He ca lled the attorne y who had he lped him with his m other’s e state to assist him in s etting up

a conserv atorship for the dece dent. Ther eaf ter, L eCornu, along with the defe ndants, set up the

c on se rv a tor sh ip, wi th the thr e e of the m de sig na te d a s c o- c on se rv a tor s. L e Co rnu saidthat, reg rettably , he did not visit the decedent ag ain before her death in October of 2003. B etwee n May 2002 and Oc tober 2003, he explained, his wife ha d back sur g ery , he wa s diag nosed with terminal-7-

canc er a nd was unde rg oing c hemothera py , and he had had a g randc hild. Neve rtheless, he said, he sent the dec edent c ards, f axes, and ca lled her on the telephone in or der to stay in contact with her

.

L eCornu testified that he had opposed moving t he decede nt to the nursing home in Martin, and he a nd Arc hie had c ommunications by e-ma il on the subject. At the t ime, L eCornu thoug ht that the def endants ha d the per ce p t i o n t h at he wa s try ing to f ight the move to Martin for moneta ry purposes. The dece dent’s phy sicians, he said, initially opposed the move, which ange re d Ar ch i e. I n o ne e -m a il, Ar c hie sa id tha t sh e wa s g oin g to take the iss ue to c ou rt a ndbr ing Sus a n Co lli ns to court with her . This remar k ang ere d L eCornu, who ha d re t ai n ed h i s own lawy er to set up the

conser v at o rshi p. Once Arc hie beg an making eff orts to force a dec ision on the placeme nt of the dece dent, L eCornu’s law y er w ithdrew in orde r to avoid a c onflict of intere st. L eCornu described that period a s “a ve ry

tense and hectic time.” L ater , he said, their r elations “mellowe d out.” L eCornu

re c og nize d th a t th e de fe nd a nts we re ha vin g to take on a ll o f the “ he a vy lif tin g ,” be c a us e he wa s in Ma ry la nd . H ow e ve r, the pa

rt ie s a tte mpt e d to c oo pe rate in h a nd lin g the de c e de nt’ s a ff a ir s.

I n an e- mail messag e date d Dec em b er 24, 2002, A rchie proposed to L eCornu that they dissolve the conser vatorship and that eac h of them have a powe r of attorney instead. She said that

“ [i ]t w o u l d b e m u c h l e s s e xp e n s i v e , a n d i t w o u l d b e m u c h e a s i e r o n u s

. I w i l l k e e p th e sa me

a c c ou nti ng of

he r fi na nc e s .

. . a nd if the re is an y thi ng le ft wh e n she pa sse s on, we c a n ju st a g re e to share it equally .” L eCornu objec ted to Arc hi e’s pr oposal, particula rly beca use of the sa feg uards provided by a conser vatorship. The conser vatorship require d that all major issues for the dece dent be de c ide d b y

the c on se nt o f a ll thr e e c o- c on se rv a tor s, a ndL e Cornu fe lt tha t th e c on servat ors hip

wo uldbe the be st way to de a l wi th imp orta nt ma tte rs . I n Jan ua ry 20 03 , L e Cornu se nt a n e -m a il t o Arc hie telling he r t h at h e wa s not comfortable with her proposa l. I n Fe bruary 2003, Arc hie and Clements instig ated the proce dures for having the dece dent draf t he r Wil l, w ith o u t i n forming L eCornu.

L eCornu testified that he was surprised when he first learned of the exis tence of the Will, and then when he le ar n e d o f it s c o n te n ts

. H e s a id th a t, b y d e v is in g th e ma jo r it y o f h e r e s tate to the defe ndants, the de ce d en t completely cut out his family

as we ll as the four c hildren of Te d Ray Clements, the defe n d an t C l em ents’ dec ease d brother. When a sked whe ther he doubted the
truth fu lne ss o f C oll ins ’ t e sti mon y , L e Cornu re pli e d, “ I ha ve no re a so n n ot t o b e lie ve Ms. Col lin s. . . . I don’t doubt her pr ofessionalism or anything like that.” When a sked the basis for his c ontention that the dec edent wa s not competent to make a will, L eCornu noted that the de cede nt had suffe red

a str ok e , w a s a dv a nc e d in y e ars , a ndha d b e e n d e c lare d inco mp ete nt i n th e c on se rv a tor sh ip
proce eding s. On cross- examination, he ag ree d that he had n o p ro o f t h at the dec edent wa s incompetent on the day she m ade the Wil l, other than the r eports fr om the medical e x aminations that

we re pe rf or me d b e fo re t he con servator sh ip w a s e sta bli sh e d. Whe n a sk e d a

bo ut the ba sis fo r h is

a sse rt ion of

un du e in fl uen ce, L e Cornu lis te d th e c ir c ums ta nc e s o n w hic h h e re lie d to su pp ort hi s claim: t h e co n fi dential re lationship between the dece dent and the de fenda nts, the phy sical and mental deterioration of the decede nt, the defendants’ involvement in procuring the Will , the sec rec y of t he ex istence of the W ill, the decedent’ s advanc ed age
, and the unjust or unnatural na ture of the
te rm s o f the Will. Th a t c on c lud e d th e te sti mon y pr e se nte d to the tr ia l c ou rt

.T he t ri al co urt had act ual l y anno unced i t s d et e rm ina tio n that t he d eced ent had t he requis i t e t est am ent ary 1 capaci t y t o m ake t he W i l l bef ore t he concl us i on of t he proof

. T he t r i al cour t t hen s t at ed, “ N ow we’ r e s t eppi ng back over t o t he un due i nf

l uen ce. ”.

“ A conf i dent i al r el at i ons hi p i s one w her e c onf i dence i s pl aced b y o ne in t he ot her an d t he r eci pi ent of t hat 2

con f i den ce i s t h e domi n an t per s on al i t y , wi t h t h e a bi l i t y , be ca u s e of t h at c on f

i den ce , t o i n f

l u en ce a n d e x er ci s e domi n i on

over t he weak er or do mi nat ed part y

. ” Ia c o m e tti v . F ra ssin e lli

, 49 4 S.W

. 2 d 49 6
, 49 9 (T enn. C t

. A p p

. 19 7 3 ).

-8- On Aug ust 2, 2004, the trial court e n t er ed an orde r denying L eCornu’s c laim of undue inf lue nc e

. Th e tr ia l c ou rt fo un d that the de c e de nt wa s c omp e te nt wh e n sh e ma de the Will, a ndthat, conseque ntly , “the bur den shifts to the person w ho contests the Will t o show undue influenc e.” The 1 trial court c onsidered the fac tors rele vant t o determine whether there has bee n undue influenc e, and found that it had not bee n proven. The trial court stated that it ba sed “the majority of” its ruling on t h e t es t i m o n y

o f C o l l i n s an d o t h er s wh o m ad e ce rt ai n t h at t h e d ec ed en t “k n ew wh at s h e w as d o i n g” and wa s comforta

ble executing the Will . The trial c ourt noted t h at C o l l i n s “re ad the Will to t he [de c e de nt] a ndtoo k mo re pa in a ndc a uti on ” tha n mo st la wy e rs wo uldtake in h a vin g the Will executed by

the dec edent. Ac cording ly , the trial court conclude d, “the undue influence burden ha s

no t be e n me t a ndthe Will s ta nd s. ” F ro m th a t or de r, L e Cornu no w a pp e a ls.

On appe al, L eCornu arg ues that the trial court plac ed the bur den of pr oving undue influence

on him a ndthat, b e c a us e the pa rt ie s h a d s tip ulate d th a t a c on fi dentia l r e la tio ns hip e xiste d, thi s allocation of the burden was an err or. Once a conf idential relationship i s established, followed by 2
a tra nsaction in which the dominant pa rty rec eives a

benef it from t h e o t h er party , then undue influence is presumed, and the burden shifts ba ck to the defe ndants to show the absence of undue inf lue nc e . T hu s, L e Cornu arg ue s, the tr ia l c ou rt app lied an inco rr e c t le g a l st a nd ardin i ts determination of this case. L eCornu further a rg ues that the de fenda nts failed to submit sufficient evidenc e to re but the presumption of undue influe nce, a nd the t rial court’s decision m ust be reve rsed.

Whether a will wa s procur ed by undue influence is a question of fa ct. Gibson v. Gibson , No. W2004-00005-COA-R3-CV, 2004 WL 2464271, *3 (Tenn. Ct. App. Nov. 2, 2004). The trial c ourt’s fac tual finding s are revie wed de novo on the re c or d, pr e su min g tho se fi nd ing s to be c or re c t un le ss the evidence p re p o n derates otherwise

. Id. ; Tenn. R. App. P. 13(d). Whether the proper leg al

s t an d ard w as applied to the c ase is a que stion of law, which is re viewed de novo
, w ith no suc h presumption of cor

rec tness. See In re Estate of Branch

, N o

. W 2 0 0 4

- 0 1 3 1 0

- C O A

- R 3

- CV
, 2 0 0 5 WL 711962, at *2 (Te nn. Ct. App. Mar. 28, 2005).

A w ill c on te st c a n b e ba se d o n th e a lle g a tio n th a t th e te stator l acked the re qu isi te testamentary

capa city , or on the c ontention that the will was procur ed by undue influence

. Se e In re E state of Maddox

, 60 S.W. 3d84 , 8 8 ( Te nn . Ct . A pp . 2 00 1) . T he bu rd e n- sh if tin g fr a me wo rk

in will contests is set out in Maddox . The a ppellate c ourt explained that the initial burden lies with the proponent of the will to show that “the will was executed in complianc e with all leg al forma lities.” Id. Such proof “ g ives rise to t he pre sumption t hat the testator w as ca pable of making a will,” and the bu rd e n s hif

ts “ to the c on te sta nts to p ro ve that th e te stator wa s un du ly inf lue nc e d in m a kin g his or her will.” Id.-9-

Th is C ou rt

ha s r e c og nize d tha t “[i]nv a lid a tin g a wi ll b e c a us e of un du e inf lue nc e is g e ne ra lly

n o t a s imp le u n d e rtaking .” Ke lle y v . J ohns , 96 S.W .3d 189, 195 (Tenn. Ct. App. 2002). U ndue influence can be proven by either dire ct or circ umstantial evidence . Howeve r, bec ause dire ct evidenc e is rar ely available
, most will contestants try to prove undue influence by establishing the exi s t en ce o f s u spicious circumstanc es that would tend to show that the testa tor’s will was not the result of fre e or independe nt action. Id. Thoug h courts “have ref raine d from pre scribing the ty pe

or number of suspicious circumstanc es nec essary to invalidate a will bec ause of undue influenc e,”

sever al suspicious circumstanc es have often be en re lied upon to prove undue influence : (1) the exis tence of a c o n fi d en t i al relationship between the te stator and the be nefic iary ; (2) the testa tor’s ph y sic a l or me nta l det e ri or a tio n; a nd(3 ) the be ne fi c iary ’s a c tiv e inv olv e me nt i n p ro c ur ing the Will. Id. at 196 (c iting ca s es ). Other e x amples of suspicious circ umstances include : (1) sec rec y

conce rning the Will ’s exis tence ; ( 2) the testator’ s advanc ed ag e; (3) the lack of independe nt advice in prepa ring the Will ; (4) the testa tor’s illit era cy or blindness; ( 5) the unjust or unnatura l nature of the W ill’s terms; (6) whether the testator was in an emotionally distraug ht state; (7) discr epanc ies betwee n the instrument and the testa tor’s expressed intentions; and (8 ) fr au d or dure ss directe d toward the testator. Id. ; Gibson , 2004 WL 2464271, at *3.

The pa rty ch al l en gi n g the validity of a w ill bears the bur den of pr oving the exis tence of suspicious circumstanc es showing that the testator did not act fre ely and independe ntly

. Kelley , 96 S.W .3d at 196; Maddox

, 60 S.W. 3d a t 88 -8 9. With ou t dir e c t e vid e nc e of un du e inf

lue nc e , th e wi ll

c on te sta nt m us t e sta

bli sh mor e tha n o ne su sp ic iou s cir c ums ta nc e in or de r to mak e ou t a pr ima fa c ie

case of undue influence. “ Proof of a confide ntial relationship alone will not support a finding of undue influenc e.” Ke lley , 96 S.W .3d at 196; Maddox , 60 S.W .3d at 89. I f a c onfidential

re la tio ns hip is e sta

bli sh e d, ho we ve r, “ tog e the r w ith a tr a ns a c tio n th a t be ne fi ts the do min a nt p art y to the re lationship or another suspicious cir cumstance , a pre sumption of undue influence arises.” Kelley , 96 S.W .3d at 196.

Once th e p r e s u mp ti o n o f u n d u e in f lu e n c e ar is e s , “ th e b u r d e n o f g o in g f o r w ar d s h if

ts ba ck to the will’s proponent t o prove by clea r and convincing evidenc e that the c halleng ed tra nsaction or
g ift was fa ir.” M

addox

, 6 0 S

. W.3d at 89. Fre quently , the will’s proponent will show that the
transac tion or g ift was fair by proving that the testator rec eived independe nt a dvice. “[ P ] ro o f of independe nt advice be comes ne cessa ry only when it would be difficult to show the fairne ss of the
transac tion or the compete ncy of the testator

without it.” Id.

L eCornu arg ues t hat t he trial court below improperly failed to shift the burden of proof to the defe ndants, an d t here fore err ed as a matter of la w. The pa rties stipulated that a c onfidential rela tionship e xis te d b e tw e e n th e d e f e n d a n ts a n d th e d e c e d e n t. T h a t f a c t, a lo n g w ith th e o th er suspicious circumstanc es such a s the bene fit to the dominant parties, the secre cy of the Will, t he defe ndants’ invo lvement in procuring the Wil l, and the dec edent’ s advanc ed ag e, trig g ere d the
pr e su mpt ion of

un du e inf lue nc e . U nd e r the se c ir c ums ta nc e s, L e Cornu arg ue s, the bu rd e n s hif te d to the def endants to r ebut the pre sumption of undue influence by clea r and c onvincing evidenc e. See Kelley , 96 S.W .3d at 196.-10-

To determine whether the t rial court proper ly allocate d the burde n of proof , we e x amine the trial court’ s oral ruling , incorporated into its August 2, 2004 orde r. The trial court stated:

[I ]nva lid a tin g a

Will becaus e of

un du e inf

lue nc e is g e ne ra lly

no t a simple undertaking. While undue influe nce c an be pr oved ei t her by direc t or by circ umstantial e vidence
, direc t evidence is rare ly available . Thus, in most cases, the
contestants esta

blish undue influence by p ro v i d ing the exis tence of suspicious circ umstances wa

rra nting the c onclusion that the Wil l was not the testator’ s fre e and i n d e p e n d en tac t

. [ Qu o t i n g Ke lle y v . J ohns

, 9 6 S. W. 3 d 1 8 9
, 1 9 5 ( T e n n

. Ct

. A pp. 2002).] Th e n th a t’ s w he re the fa c tor s c a me in that w e ’v e ta lke d a bo ut i n a d n a us e a m, which I think I ’m very

familiar with and I

probably have me morized. * * * My fi nd ing s of fa c t ar e that, fi rs t of all , the re is no ca se la w tha t say s, be c a us e she wa s u n d er this conse rvatorship, she c ouldn’t – didn’t have the te stamentary

ca p ac i t y , an d t h at go es b ac k t o t h e f i rs tp ro n g. And then my finding s of fac t on the undue influence are that, first of all, Mr. L eCornu wa s never

prese nt after

the stroke to – to per sonal l y see he r to know

w h e th e r o r n o t s h e w a s

– h e r

c o n d it io n h a d d e te r io r a te d o r s h e la c k e d th e ab il it y

. We know she wa sn’t illit erate. Second of a ll, I ’m basing a lot of t he – and the majority of m y ruling on the fa c t th a t I d o n ’ t th in k a n y a tt o r n e y in th e ir r ig h t s tate o f mi n d w o u ld b e t a hundred and fifty dollars, and a ctually

she re ceive d nothing, to lose a law license

. Ms. Coll ins, who I

have ne ver me t or eve n seen or hear d befor e today , was – h e r t e sti mon y wa s sh e , a lon g wi th the tw o w itn e sse s, Ms. Vo we ll a ndMs. Parh a m, went above and bey ond the ca ll of duty to make ce rtain, first of a ll, that she was comforta ble; that Mrs. Turner was – knew what she was doing; and the fa ct that she

wa s v e ry sp e c if ic abo ut h e r b e qu e sts . I f i t w e re jus t a simple “ div ide d tw o w a y s” , it

wo uldc e rt a inl y

ra ise so me re d f

la g s – be tw e e n th e tw o p art ie s wh o we re ult imate ly named a s the residua

ry benef iciarie s. And, I think the thing that’s most telling is that she wa nted Ms. Colli ns as an attorney , and she unde rstood that att o rn ey -c lient privileg e thing probably better than some people who are lawy ers, and that she didn’t
want eve ry

body to know. A wise pe rson said, “B e wise a s a ser pent, but harmless a s a dove.” And, I think she didn’t want the harm or any one to be hurt until afte r her death, a nd I think that’s why

she wa ited. She also rea d the Will to her a nd took more pain a nd caution, fr om the testimonyI ’ve he ard, tha n many , many lawy ers do. So, it is the ruling of this Court that the undue influenc e burde n has not bee n met and the Will st ands.

Th us , th e tr ia l c ou rt re c og nize d th e pr op e r a na lytic a l f ra me wo rk , q uo tin g fr om Kelley

, sup ra , and noting the “fa ctors came in that we’ ve talked about i n ad nauseam, which I think I ’m very

familiar-11-

with and I probably have memorized.” The trial court then based “the m ajority of [ its] ruling ” on Colli ns’ testimony
, along with the corrobora ting testim ony of Vowell and P arha m. The trial c ourt determined that, based on this testimony , the testator r ece ived advice from C o l l i n s, that she was

co m fo rt ab l e with her Will, and that she was a war e of w hat she wa s doing. The trial court f urther

cre dited Colli ns’s tes t i m ony that the dec edent va lued the attorne y -client privileg e, and that the dece dent had de cided to kee p the Will a sec ret until after her de ath.

I n viewing the t rial court’s analy sis as a whole, it appea rs t hat t he trial court found c lear and convincing evidenc e that the de cede nt rec eived indepe ndent advice , sufficie nt t o re but any presumption of undue influence

. The trial court did not clea rly articula te t h e burden-shifting fra mework. H oweve r, the trial c ourt clea rly cr edit ed the testimony of Collins, who stated unequivoca lly

that the dec edent’s choices w ere made of her ow n fre e will independe nt of outside influence . The re cord supports the t rial court’s conclusions in this reg ard. A t the outset, Colli ns was

a da ma nt that she be g ive n med ic a l pro of that the de c e de nt ha d th e re qu isi te te sta me nta ry c apa c ity to make a w ill. S he met alone with the dece dent to disc uss the bequests in he r Wil l, and the dec edent specifie d her w ishes in detail. Colli ns even a sked about L eCornu spec ifically , g iven the fa ct that he is o f e qu a l ki ns hip wi th the de fe nd a nts

. Th e de c e de nt expr e sse d he r de sir e that L e Cornu re c e ive on ly the items specific ally

devised. The re i s n o evidenc e to sug g est that Collins conspired w ith the defe ndants or that she operated ac cording to their instructions; even L eCornu conc eded that he had

no rea son to doubt Colli ns’ vera city

. There are certainly circ umstances surrounding the proc ureme nt of the Will t hat ar e troubling , particula rly the fa ct that the def

endants did not inform L eCornu about the ir e ff orts t o s e c ur e a

wi ll f ro m th e de c e de nt, e ve n thou g h he wa s the c o- c on se rv a tor of he r e state

an d h ad co m m u n i ca t e d w i t h t h e d ef en d an t s re gar d i n g o t h erd ec i s i o n s ab o u th erwe l l -b ei n g. Ne ve rthe le ss, the tr ia l c ou rt ’s de c isi on hin g e d on its a sse ssm e nt of the c re dib ili ty

of the wi tne sse s. The trial c ourt’s cr edibilitydeterminations are g iven g reat weig ht on appea l, be cause the trial court had the be nefit of obse rving the witnesses a nd assessing their dem ea n o r an d “is in a fa r better position that this Court to dec ide those issues.” Gibson

, 2004 WL 2464271, at *3. To find that the dece dent did not in fact re ceive independe nt advice w ould be contra ry t o the trial court’s determination that Col lins’ testimonyshould be cre dited. This we ar e not at liberty to do.

Under these c ircumst ance s, we find that the trial court e mploy ed the a ppropriate leg al standard, a nd that the evidenc e does not pre ponderate ag ainst its finding that the burde n of proving undue influenc e wa s not met. There fore , its decision to uphold the W ill mus t be af firmed.

The de cision of the trial c ourt is aff irmed. Costs on appea l are to be taxed to Appellant J ohn L eCornu, and his sure ty , for whic h execution may issue, if nec essary

.

___________________________________ HOLL Y M. KI RBY, JUDGE