IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 20, 2016 Session

IN RE ESTATE OF GERTRUDE BIBLE LINK

Appeal from the Chancery Court for Marion County

No. 7677, PR135 Jeffrey F. Stewart, Chancellor

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No. M2015-02280-COA-R3-CV – Filed February 22, 2017

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This is an appeal from a jury trial in a will contest. The jury returned a verdict finding 

that the contested will was valid. The contestants have appealed, raising numerous issues 

and arguing that the evidence presented does not support the jury’s verdict. We affirm. 

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

and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which RICHARD H.

DINKINS and KENNY ARMSTRONG, JJ., joined.

Jackie Sharp, Jr. and Natalie R. Sharp, Nashville, Tennessee, for the appellants, Carlynn 

D. Newcom, Reed B. Durham, and Don E. Durham.

Ronnie J. T. Blevins, II, Jasper, Tennessee, and Jared C. Smith, South Pittsburg, 

Tennessee, for the appellee, James Clifford Layne.

OPINION

I. BACKGROUND AND PROCEDURAL HISTORY

This is an action to contest the validity of a document purporting to be the last will 

and testament of Gertrude Bible Link. For clarity, we will briefly summarize Ms. Link’s 

relevant family relationships before discussing the circumstances surrounding the 

document’s execution and the procedural history of this case. 

Ms. Link was born on January 6, 1915. She graduated from Middle Tennessee 

State University and worked for many years as a schoolteacher in Marion County, 

Tennessee. She married Harlen Link in 1939, and they remained married until Mr. Link

died in 1992. Although Ms. Link did not have any children, she maintained close 
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relationships with her family. Ms. Link had a particularly close relationship with her 

younger sister, Cathryn Durham. Ms. Link and Ms. Durham attended college together 

and shared a life-long interest in gardening. They formed a local gardening club together 

and traveled to various flower and garden shows. Ms. Durham’s children–Carlynn 

Newcom, Don Durham, and Reed Durham–also had close relationships with Ms. Link 

growing up. Clifford Layne is the son of Ms. Link’s older sister, Bonnie Layne.1 Mr. 

Layne has been a general sessions and municipal court judge in Marion County since 

1974. As she grew older, Ms. Link relied on Mr. Layne for advice in ordering her legal 

and financial affairs. 

In 1989, Ms. Link approached Mr. Layne for legal advice, and he referred her to 

Zach Kelly, a local attorney with whom he had a personal and professional relationship. 

Mr. Kelly drafted a will for Ms. Link, and she executed it in May 1989. Ms. Link’s 1989 

will named Mr. Layne as executor of her estate and, in pertinent part, provided that if she 

survived her husband, her property would be distributed in equal shares to Cathryn 

Durham, Carlynn Newcom, Reed Durham, Donald Durham, and Clifford Layne. 

In 1996, Ms. Link asked Mr. Layne if he would be willing to serve as her attorneyin-fact. Once again, he referred her to Mr. Kelly. Mr. Kelly drafted a general power of 

attorney authorizing Mr. Layne to act on Ms. Link’s behalf in all matters, and Ms. Link 

executed it in March 1996. At trial, Mr. Layne testified that he drove Ms. Link to Mr. 

Kelly’s office to execute the power of attorney and waited in the lobby while she met 

with Mr. Kelly. Although the document was effective upon execution, there is no 

evidence that Mr. Layne acted as Ms. Link’s attorney-in-fact prior to 2001. 

In 1998, Ms. Link executed the document at issue in this case. According to Mr. 

Layne, Ms. Link told him that she intended to make a new will that would leave all of her 

property to him with the exception of a $10,000 devise to her church. Mr. Layne drove 

Ms. Link to Mr. Kelly’s office where she met with Mr. Kelly alone while Mr. Layne 

waited in the lobby. A handwritten note purportedly written by Mr. Kelly was admitted 

as evidence at trial. In pertinent part, the note states:

3/5/98 Conf w/ Mrs. Gertrude Link

I met w/ her alone in my office.\

She was well aware of what she wanted 

to do.

 

1 Ms. Link had other siblings, nieces, and nephews, but the record contains little information about them, 

and they are not relevant to this appeal. 
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If estate exceeds $300,000 leave $10,000 

to church.

Leave everything else outright 

to Clifford Layne. He is to 

handle as he sees fit!!

I mentioned Betty but she said not at this time. 

On March 11, 1998, Ms. Link executed a document drafted by Mr. Kelly that provided, 

in pertinent part, as follows:

LAST WILL AND TESTAMENT

OF

GERTRUDE B. LINK

I, Gertrude B. Link, of Marion County, Tennessee, being of sound 

and disposing mind and memory, do hereby make, publish and declare this 

to be my Last Will and Testament, hereby revoking all prior testamentary 

instruments.

ARTICLE I

I direct my Executor: to pay all of my just debts, funeral expenses, 

costs of administration and taxes out of my general estate, as soon as 

practicable after my death.

ARTICLE II

If the value of my personal estate, excluding the value of my real 

estate, personal effects, automobiles, clothing, jewelry, and household 

furnishings and furniture, is equal to or exceeds the sum of Three Hundred 

Thousand ($300,000.00) Dollars, then I do hereby make the following 

devise:

A. To the First Baptist Church of Jasper, Tennessee, the sum of Ten 

Thousand ($10,000.00) Dollars, to be utilized only for building and/or 

renovation purposes.

ARTICLE III
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I do hereby give, devise and bequeath all of the rest, residue and 

remainder of my estate, including both realty, and personalty, and wherever 

located, in fee simple and absolutely, to my nephew, James Clifford Layne.

ARTICLE IV

I appoint my nephew, James Clifford Layne, as Executor of this my 

Last Will and Testament. 

Both pages of the two-page document bear the handwritten initials “GL,” and the second 

page bears Ms. Link’s signature as “Testatrix.” Mr. Kelly and his assistant, Danielle 

Steele, signed the document as witnesses to its execution and also signed an attached 

affidavit affirming that Ms. Link signed the will in their presence and that they attested 

the will in her presence and in the presence of each other. The affidavit bears the 

handwritten initials “GL” and reflects that it was notarized by Marty Murphy, another of 

Mr. Kelly’s assistants. The document does not contain any reference to Cathryn Durham, 

Carlynn Newcom, Don Durham, or Reed Durham. 

In 2005, Cathryn Durham died. In 2007, with Ms. Link suffering from dementia, 

Mr. Layne authorized her admission to a nursing home and began using his power of 

attorney to exercise full control over her finances. From 2007 to 2012, Mr. Layne 

exercised his power of attorney to pay for the upkeep of Ms. Link’s house, her nursing 

home expenses, and various other expenses from Ms. Link’s funds. In 2012, with Ms. 

Link’s health deteriorating further, Mr. Layne contacted Carlynn Newcom to discuss 

selling Ms. Link’s house. Ms. Newcom agreed that they should sell the home if Ms. Link 

was not going to live in it again. Around that time, Mr. Layne cleaned out Ms. Link’s 

house and threw away numerous documents and other items. At Ms. Link’s direction, 

Mr. Layne contacted Carlynn Newcom, Don Durham, and Reed Durham prior to selling 

the house and allowed them to come take any items they wanted from it. Ms. Link died 

in December 2012. 

In January 2013, Mr. Layne filed a petition to probate Ms. Link’s 1998 will. In 

May 2013, Carlynn Newcom, Don Durham, and Reed Durham (collectively, the 

“Contestants”), filed an amended complaint contesting the validity of the 1998 will. In 

the complaint, they alleged that the will was a forgery. Alternatively, they alleged that 

Ms. Link did not possess requisite testamentary capacity or testamentary intent when she 

signed the will and that the will was procured through undue influence or fraud.2 They 

asserted that the 1998 will should be set aside and Ms. Link’s estate should be distributed 

 

2 Although the Contestants’ amended complaint lists “Mistake” as a separate basis for their will contest, 

the allegations related to it are substantively identical to those in the section titled “Testamentary Intent.” 
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according to the terms of the 1989 will. Mr. Layne filed an answer denying the material 

allegations of the amended complaint, and the trial court entered a scheduling order that 

established various discovery deadlines. 

Following a period of discovery, the Contestants filed a motion for partial 

summary judgment asserting that undisputed material facts established (1) that Mr. Layne 

had a confidential relationship with Ms. Link prior to her execution of the 1998 will, (2) 

that Mr. Layne’s close relationship with Mr. Kelly rendered Mr. Kelly incapable of 

providing Ms. Link with independent advice, and (3) that Mr. Layne prejudiced the 

Contestants by destroying documents relevant to their case. Mr. Layne opposed the 

motion, and the trial court denied it based on its conclusion that material facts were in 

dispute. 

The case was set for a jury trial scheduled to begin on July 21, 2015. The day 

before trial, Mr. Layne’s attorney spoke with Mr. Kelly’s wife, Elizabeth Kelly. Ms. 

Kelly informed Mr. Layne’s attorney that Mr. Kelly would not be able to testify at trial 

due to his deteriorating health. She also informed him that she had photocopies of the 

handwritten notes Mr. Kelly wrote during his meeting with Ms. Link. Mr. Layne’s 

attorney immediately notified the Contestants’ attorneys of his intent to present Ms. Kelly 

as a witness regarding Mr. Kelly’s unavailability and to present the handwritten notes as 

evidence that Ms. Link received independent advice regarding the will. The Contestants 

objected to the late-disclosed evidence at the outset of trial the following day. After 

listening to arguments from both sides, the trial judge noted that both parties could have 

attempted to depose Mr. Kelly or subpoena his records related to Ms. Link’s 1998 will 

and chose not to do so. The judge ruled that Ms. Kelly would be permitted to testify 

regarding Mr. Kelly’s health but indicated that he would reserve ruling on the 

admissibility of the handwritten notes. Thereafter, the parties presented their proof to the 

jury. 

Initially, Mr. Layne presented evidence intending to demonstrate that the 1998 

will was executed in compliance with the formalities of law. To that end, Ms. Kelly 

testified that Mr. Kelly was not able to testify because he suffered a stroke in 2011 that 

left him partially paralyzed and severely affected his ability to communicate. She 

explained that, as a result of his condition, she spent an inordinate amount of time each 

day trying to communicate with him to accomplish simple tasks. Ms. Kelly also 

identified Mr. Kelly’s signature on the 1998 will. In light of Ms. Kelly’s testimony, the 

trial court later indicated its satisfaction that Mr. Kelly was not an available witness. The 

will’s other subscribing witness and the notary public who acknowledged the witnesses 

signatures also testified. Ms. Murphy and Ms. Steele both testified that Mr. Kelly was 

very professional and followed the same strict protocol every time he drafted a will for a 

client. They explained that, before drafting the will, Mr. Kelly always met with the client 
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alone in his office to discuss the client’s intentions. When the client returned to execute 

the will, Mr. Kelly allowed only the client, the necessary witnesses, and the notary to be 

in the room. Any person that accompanied the client to the office was required to wait 

outside. Although neither Ms. Murphy nor Ms. Steele specifically remembered the 

execution of Ms. Link’s will in 1998, they identified their own signatures and Mr. Kelly’s 

signature on the document. As such, the trial court admitted Ms. Link’s 1998 will into 

evidence. 

Next, the Contestants presented evidence aimed at demonstrating that the 

document purporting to be Ms. Link’s 1998 will was invalid. Carlynn Newcom testified 

at length regarding the close relationship Ms. Link shared with her mother and 

maintained that it never changed. She produced a copy of Ms. Link’s 1989 will, which, 

she testified, Ms. Link gave to her shortly after executing it. Ms. Newcom testified that 

she visited Ms. Link in the nursing home every week, and Ms. Link never mentioned 

changing her 1989 will or having another will. She explained that she and her brothers 

first learned about the 1998 will after Ms. Link died when Mr. Layne told them that she 

left everything to him. Although she acknowledged that Ms. Link did not discuss her 

finances openly, Ms. Newcom maintained that Ms. Link would not have disinherited her 

family without saying something. Nevertheless, she admitted that she had no evidence 

that Ms. Link’s 1998 will was invalid. Ms. Newcom acknowledged that Ms. Link had 

her wits about her “[m]ost of the time” in 1998 and that, to her knowledge, Ms. Link was 

not afraid of Mr. Layne or under any emotional distress. Don Durham and Reed Durham 

also testified, and their testimony differed little in substance from Ms. Newcom’s 

testimony. Both testified that Ms. Link did not discuss her finances with them but 

maintained that she would not have disinherited their mother. Don Durham testified that 

Ms. Link appeared to have her wits about her in 2001. Similarly, Reed Durham testified 

that she appeared to have her wits about her in 1998. Reed Durham also testified that 

Ms. Link thought “very highly” of and trusted Mr. Layne. Ryan Phillips testified that he 

lived near Ms. Link and began doing odd jobs for her about once a week starting in 1997. 

Mr. Phillips testified that he never heard Ms. Link mention Mr. Layne in the eight or nine 

years he worked for her, although she spoke often about Ms. Durham, who he knew from 

church. He testified that Ms. Link appeared to be in her right mind, although she seemed 

“elderly.” He explained that Ms. Link was trusting and that someone probably could

have taken advantage of her. Fred Newcom, Carlynn Newcom’s husband, testified that 

Mr. Layne told him in 2005 that he did not know anything about Ms. Link’s finances. He 

testified that, in a later conversation, Mr. Layne told him that he had stopped visiting Ms. 

Link in the nursing home. 

The Contestants also presented testimony of Mr. Layne. Mr. Layne agreed that 

Ms. Link was very close with Ms. Durham, but testified that he grew close with Ms. Link 

in her later years. He admitted, however, that his only evidence of their relationship was 
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her 1996 power of attorney and her 1998 will. Mr. Layne was questioned at length 

regarding his failure to produce various documents that were presumably in Ms. Link’s 

possession during her lifetime. Mr. Layne acknowledged that he did not know what 

happened to Ms. Link’s driver’s license, marriage license, or credit card receipts. He 

testified that Ms. Link had drawers full of check stubs, bank statements, and tax returns 

dating back to the 1940s and explained that he threw away numerous documents and 

other items when he was preparing Ms. Link’s house to be sold. Nevertheless, he 

maintained that he did not throw away anything he considered to be important and did 

not destroy any documents in anticipation of the litigation. Mr. Layne testified that Ms. 

Link told him what would be in her 1998 will before she met with Mr. Kelly about it. He 

testified that he drove her to Mr. Kelly’s office and waited in the lobby while she met 

with him. He acknowledged that he could not produce any documentation showing who 

paid Mr. Kelly to draft Ms. Link’s 1998 will but explained that Ms. Link likely had 

because she handled her own transactions at the time. Mr. Layne acknowledged that he 

had been friends with Mr. Kelly for more than 40 years. He testified that the two had 

been on fishing trips together in the past but maintained that they did not take any trips 

together in the 10 years prior to 1998. He also testified that Mr. Kelly had served as his 

personal attorney in various matters through the years. Mr. Layne testified that he visited 

Ms. Link every week when she was in the nursing home and felt obligated to take greater 

care of her knowing the contents of her 1998 will. When asked why he never told anyone 

about Ms. Link’s 1998 will, Mr. Layne answered that it was not his information to tell. 

After the Contestants concluded the presentation of their case-in-chief, Mr. Layne 

presented additional witness testimony. Ronald Case testified that he was the director of 

Ms. Link’s nursing home and served as her chaplain while she was there. Mr. Case 

testified that he saw Mr. Layne at the nursing home every week but that he did not 

recognize the Contestants. Joyce Ann Parker testified that she was Ms. Link’s niece and 

a first cousin of Mr. Layne and the Contestants. Ms. Parker testified that she had 

frequently visited Ms. Link’s nursing home to see her mother-in-law and saw Mr. Layne 

and his wife there many times. She testified that she saw Carlynn Newcom there once 

but stated that she never saw Don or Reed Durham. Gene Rountree testified that he was 

employed by Ms. Link’s nursing home and that he saw Mr. Layne visiting her there 

“periodically.” Mr. Rountree testified that he did not recognize any of the Contestants. 

At the end of the second day of trial, the trial court excused the jury and held an 

evidentiary hearing on the admissibility of the photocopied handwritten notes purportedly 

written by Mr. Kelly during his meeting with Ms. Link. During the hearing, Ms. Murphy 

identified Mr. Kelly’s handwriting in the notes and testified that they were typical of the 

notes Mr. Kelly would write when meeting with a client. She explained that, at some 

point, Mr. Kelly’s files were scanned onto a computer and the original copies were 

destroyed. Ms. Kelly also identified Mr. Kelly’s handwriting in the notes. She explained 
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that, when Mr. Kelly closed his law office, she scanned all of his files onto a computer 

and shredded the originals. After hearing their testimony and considering the arguments 

of the parties, the trial court ruled that the handwritten notes were to be admitted as 

evidence. When the jury returned the following morning, Ms. Kelly authenticated the 

handwritten notes and they were admitted into evidence. 

After the conclusion of proof and closing arguments, the trial court read its 

instructions to the jury. The judge instructed the jury on the burdens applicable to each 

of the grounds listed in the Contestants’ amended complaint for contesting Ms. Link’s 

1998 will: forgery, lack of testamentary capacity, lack of testamentary intent, undue 

influence, and fraud. The jury was given a verdict form requiring it to answer certain 

questions related to each of the grounds instructed by the judge and was excused to 

deliberate at 1:00 pm. At 4:39 pm, the judge informed the parties’ attorneys that he had 

received word from the bailiff that the jury did not expect to reach a verdict that night and 

that several of the jurors would be unable to return the following day. The judge 

explained that he could declare a mistrial but suggested that he could give the jury “a 

little dynamite charge” to emphasize the importance of their efforts. The attorneys did 

not object to the court giving the jury a supplemental instruction, and the jury was 

brought back into the courtroom. In its supplemental instruction, the judge noted the time 

and money each side had invested in trying the case and encouraged the jurors to be 

willing to reexamine their own views. Sometime thereafter, the parties’ attorneys 

notified the judge that they would accept a majority verdict, but the judge encouraged 

them to give the jury more time to reach a unanimous verdict.3 At 6:32 pm, the jury 

announced its unanimous verdict upholding Ms. Link’s 1998 will. Specifically, the jury 

found that (1) Ms. Link had the testamentary capacity to execute the contested will, (2) 

Ms. Link had the testamentary intent to execute the contested will, (3) the contested will 

was not forged, (4) the contested will was not the product of undue influence, (5) the 

contested will was not the product of fraud, and (6) the document executed on March 11, 

1998 was Ms. Link’s valid, executed last will and testament. 

On August 21, 2015, the Contestants filed a post-judgment motion for a judgment 

notwithstanding the verdict or new trial. In the motion, they argued that the trial court 

should enter a judgment notwithstanding the verdict because no material evidence was 

presented at trial to support the jury’s verdict. Alternatively, they argued that they were 

entitled to a new trial because the jury’s verdict was contrary to the weight of the 

evidence, contrary to law, and the result of errors committed by the trial court. They 

 

3 Although this discussion took place off the record, the trial judge recounted it on the record during a 

subsequent hearing on the Contestants’ post-judgment motion. Neither party disputed the accuracy of the 

judge’s account of the conversation during the post-judgment hearing, and neither party disputes it on 

appeal. 
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proceeded to list 43 alleged errors made by the trial court that they argued impaired their 

right to a fair trial and resulted in an erroneous verdict. 

The trial court held a hearing on the Contestants’ post-judgment motion on 

October 6, 2015. Although the judge declined to address each of the 43 errors listed in 

their motion, he was particularly concerned with one of them–“38. The trial judge 

engaged in ex parte communications with the jury.” He stated that he had, in fact, 

communicated with the jury off the record and outside the presence of the attorneys. He 

explained that, in response to a report of possible juror intimidation, he reiterated his 

earlier jury instructions by encouraging the juror to consider the opinions of others. He 

further explained that, immediately after the incident, he disclosed it to the attorneys for 

both parties and neither party objected. He stated that, although he regretted not putting 

the exchange on the record, he did not think it warranted a new trial. The trial court 

entered an order denying the Contestants’ post-judgment motion on November 9, 2015. 

The Contestants timely filed an appeal to this Court on November 30, 2015. 

II. ISSUES

The Contestants raise issues for our review, which we restate as follows:

1. Whether the trial court committed reversible error in denying the 

Contestants’ motions for partial summary judgment and judgment 

notwithstanding the verdict.

2. Whether the trial court abused its discretion in controlling the course of 

trial and witness examination.

3. Whether the trial court abused its discretion in its evidentiary rulings.

4. Whether the trial court committed reversible error in delivering 

inaccurate and incomplete jury instructions and in using the verdict form 

that was given to the jury. 

5. Whether the trial court committed reversible error in delivering its 

supplemental instructions and in engaging in ex parte communications with 

the jury.

6. Whether the trial court committed reversible error in performing its 

duty as the thirteenth juror. 
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7. Whether there is material evidence in the record to support the jury’s 

verdict. 

III. STANDARD OF REVIEW

With the constitutional underpinning of the right to a jury trial framing the 

appellate process, Tennessee Rule of Appellate Procedure 13(d) narrowly limits the role 

of appellate courts in reviewing the factual findings of a jury. Duran v. Hyundai Motor 

Am., Inc., 271 S.W.3d 178, 204 (Tenn. Ct. App. 2013). When the factual foundation of a 

jury verdict is challenged on appeal, it will only be set aside when there is no material 

evidence to support it. Tenn. R. App. P. 13(d). Nevertheless, we review the trial court’s 

conclusions of law de novo with no presumption of correctness. See Elchlepp v. Hatfield, 

294 S.W.3d 146, 149 (Tenn. Ct. App. 2008).

The Contestants challenge a number of the trial court’s discretionary decisions. 

On appeal, a trial court’s discretionary decisions are analyzed using the abuse of 

discretion standard of review. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 

2010). In reviewing a trial court’s discretionary decisions, the “appellate courts should 

begin with the presumption that the decision is correct and should review the evidence in 

the light most favorable to the decision.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 

(Tenn. Ct. App. 1999). The decision “will be upheld so long as reasonable minds can 

disagree as to propriety of the decision made.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 

(Tenn. 2001). That deferential standard reflects awareness that the decision being 

reviewed involved a choice among several acceptable alternatives and therefore envisions 

a less rigorous review of the decision and a decreased likelihood that it will be reversed 

on appeal. Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010). A trial court’s 

decision will only be reversed under an abuse of discretion standard “when it causes an 

injustice to the party challenging the decision by (1) applying an incorrect legal standard, 

(2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly 

erroneous assessment of the evidence.” Lee Med., Inc., 312 S.W.3d at 524. 

IV. DISCUSSION

When a testator dies, the person nominated by the testator’s will to serve as 

executor of the estate has a duty to institute legal proceedings to probate the will. In re 

Estate of Boote, 198 S.W.3d 699, 711 (Tenn. Ct. App. 2005). Thereafter, any person who 

claims an interest in the testator’s estate has a right to contest the validity of the will and 

to demand a jury trial on disputed questions of fact. Id. at 713 (citing Tenn. Code Ann. § 

32-4-107(a)). The primary issue in a will contest is generally whether the paper writing 

offered for probate is the testator’s valid last will and testament. Id. 
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Due to their unique nature, courts use presumptions to shift the burden of proof in 

will contest proceedings. Initially, the proponent of the contested will has the burden of 

presenting proof that the will was executed in compliance with all of the formalities of 

law. In re Estate of Eden, 99 S.W.3d 82, 88 (Tenn. Ct. App. 1995). When the contested 

will is a written document with subscribing witnesses, it must be proved by all living 

witnesses, “if to be found.” Tenn. Code Ann. § 32-4-105 (2015). Once the proponent 

presents proof showing that the will was executed in compliance with the legal 

formalities, the will is presumed to be valid, and the burden shifts to the contestant to 

demonstrate that the will is invalid for some reason. In re Estate of Eden, 99 S.W.3d at 

88. 

While the Contestants challenged the validity of Ms. Link’s 1998 will on several 

grounds at trial, the one most pertinent to the issues they raise on appeal is undue 

influence. Undue influence is characterized as coercive conduct aimed at destroying the 

testator’s free agency to such an extent that the stronger will of the proponent overcame 

the will of the testator. See Keasler v. Estate of Keasler, 973 S.W.2d 213, 220 (Tenn. Ct. 

App. 1997) (quoting Hammond v. Union Planters Nat’l Bank, 222 S.W.2d 377, 383-84 

(Tenn. 1949)). Because direct evidence of undue influence is rare, the contestants in 

most cases must establish undue influence by proving the existence of suspicious 

circumstances that support a conclusion that the will’s execution was not the product of 

the testator’s free and independent act. Kelley v. Johns, 96 S.W.3d 189, 195 (Tenn. Ct. 

App. 2002). The suspicious circumstances most frequently relied on in will contests are 

(1) a confidential relationship between the testator and the beneficiary, (2) the testator’s 

poor physical or mental health, and (3) the beneficiary’s involvement in the procurement 

of the will.4 Id. at 196. Although there is no prescribed type or number of suspicious 

circumstances necessary to invalidate a will, the doctrine of undue influence is only 

applicable in Tennessee when it is shown that the person alleged to have exercised undue 

influence on the testator was in a confidential relationship with the testator.5 In re Estate 

of Brevard, 213 S.W.3d 298, 302 (Tenn. Ct. App. 2006). 

A confidential relationship is any relationship that gives one person dominion and 

control over another. Kelley, 96 S.W.3d at 197. Confidential relationships can assume a 

variety of forms, and the courts have generally been reluctant to define what constitutes a 

confidential relationship. Id. Nevertheless, courts have identified several types of 

relationships that are confidential as a matter of law. Id. In Mitchell v. Smith, 779 

 

4 Other recognized suspicious circumstances are (1) secrecy concerning the will’s existence, (2) the 

testator’s advanced age, (3) the lack of independent advice in procuring the will, (4) the testator’s 

illiteracy or blindness, (5) the unjust or unnatural terms of the will, (6) the testator being in an emotionally 

distraught state, (7) discrepancies between the will and testator’s expressed intentions, and (8) fraud or 

duress directed toward the testator. Kelley, 96 S.W.3d at 196.

5

Such a confidential relationship need not involve the beneficiary, as undue influence may be exercised 

by someone other than a beneficiary. DeLapp v. Pratt, 152 S.W.3d 530, 542 (Tenn. Ct. App. 2004). 
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S.W.2d 384, 388 (Tenn. Ct. App. 1989), this Court held that a person authorized to act on 

behalf of another by virtue of an unrestricted power of attorney has a confidential 

relationship as a matter of law with the person who executed the power of attorney. 

Initially, the Tennessee Supreme Court expressed its agreement with that rule in Matlock 

v. Simpson, 302 S.W.2d 384, 386 (Tenn. 1995). Later, however, in Childress v. Currie, 

74 S.W.3d 324, 329 (Tenn. 2002), the Tennessee Supreme Court clarified that an 

unexercised power of attorney does not create a confidential relationship. Thus, 

Tennessee case law currently provides that a confidential relationship arises as a matter 

of law when an unrestricted power of attorney is granted in favor of the dominant party 

and is, in fact, exercised by the dominant party.6 See, e.g., Mitchell v. Morris, No. 

E2015-01353-COA-R3-CV, 2016 WL 890212, at *6 (Tenn. Ct. App. Jan. 6, 2016). 

A confidential relationship followed by a transaction in which the dominant party 

receives a benefit from the other party creates a presumption of undue influence. In re 

Estate of Price, 273 S.W.3d 113, 125 (Tenn. Ct. App. 2008). The proponent may rebut 

the presumption by presenting clear and convincing evidence of the fairness of the 

transaction. Id. As it is used in this context, however, the term “fairness” is not meant to 

suggest an inquiry into whether the person benefitting from the will deserved what the 

will provided. Matter of Estate of Depriest, 733 S.W.2d 74, 79 (Tenn. Ct. App. 1986). 

“A person may make a legally effective disposition of his estate which reasonable men 

would regard as unfair.” In re Reddaway’s Estate, 329 P.2d 886, 892 (Or. 1958). 

Instead, the inquiry is limited to a determination of the testator’s capacity to make a will 

and whether the provisions of the will were arrived at through the testator’s free agency. 

Id. Oftentimes, the fairness of a contested will is demonstrated by presenting evidence 

that the testator received independent advice in preparing the will. In re Estate of 

Maddox, 60 S.W.3d 84, 89 (Tenn. Ct. App. 2001). 

 

6

In In re Conservatorship of Groves, 109 S.W.3d 317, 352 (Tenn. Ct. App. 2003), this Court cited 

Childress in stating, “[a] general power of attorney is not necessarily evidence of a confidential 

relationship as long as the person receiving the power of attorney was not active in its procurement and 

has not exercised it.” The Contestants interpret that statement as providing that a general power of 

attorney, even if it is not exercised, creates a confidential relationship as a matter of law if the attorney-infact was active in procuring it. However, this Court’s cases citing Groves have consistently interpreted it 

to mean that a confidential relationship exists as a matter of law when the attorney-in-fact was active in 

procuring a general power of attorney and has exercised it. See Malek v. Gunter, No. M2009-00059-

COA-R3-CV, 2009 WL 4878613, at *6 (Tenn. Ct. App. Dec. 16, 2009); Cataldo v. Stanley, No. M2008-

02430-COA-R3-CV, 2009 WL 3074620, at *6 (Tenn. Ct. App. Sept. 25, 2009); Dickson v. Long, No. 

M2008-00279-COA-R3-CV, 2009 WL 961784, at *9 (Tenn. Ct. App. Apr. 8, 2009); Waller v. Evans, No. 

M2008-00312-COA-R3-CV, 2009 WL 723519, at *8 (Tenn. Ct. App. Mar. 17, 2009). 
- 13 -

A. Summary Judgment and Judgment Notwithstanding the Verdict

The Contestants argue that the trial court erred in denying their pre-trial motion for 

summary judgment. Summary judgment is a procedural mechanism for avoiding the 

time and expense of trial by concluding cases that can be resolved on dispositive legal 

issues alone. See Messer Grieshiem Indus. v. Cryotech of Kingsport, Inc., 45 S.W.3d 

588, 608 (Tenn. Ct. App. 2001). When a trial court denies a motion for summary 

judgment based on the existence of disputed material facts, the denial is not appealable 

after a trial on the merits. In re Estate of Blackburn, 253 S.W.3d 603, 611 (Tenn. Ct. 

App. 2007). In this case, the trial court denied the Contestants’ summary judgment 

motion based on the existence of disputed material facts, and the case proceeded to a full 

jury trial on the merits. As such, the trial court’s denial of summary judgment is not 

reviewable on appeal, and we decline to address it. 

The Contestants also argue that the trial court erred in denying their post-judgment 

motion for a judgment notwithstanding the verdict. Although the term is not used in the 

rule, Tennessee Rule of Civil Procedure 50.02 provides a procedure for what is 

commonly referred to as a judgment notwithstanding the verdict. Robert Banks, Jr. & 

June F. Entman, Tennessee Civil Procedure § 12-1(c) (4th ed. 2015). Technically, the 

rule permits a trial judge to take a motion for a directed verdict under advisement without 

granting or denying it at trial and allows the moving party to request a ruling on the 

motion after the jury has returned its verdict. Id. As such, a party seeking a judgment 

notwithstanding the verdict based on the legal insufficiency of the opposing party’s 

evidence must have moved for a directed verdict before the case was submitted to the 

jury. Tenn. R. Civ. P. 50.02; Potter v. Tucker, 688 S.W.2d 833, 835 (Tenn. Ct. App. 

1985). In this case, the Contestants did not move for a directed verdict before the case 

was submitted to the jury. The trial court’s denial of their motion for a judgment 

notwithstanding the verdict was therefore appropriate. 

B. Errors Affecting the Jury’s Verdict

The Contestants raise a number of issues related to the trial court’s control over 

the course of the trial and witness examination. They argue that, taken together, those 

errors contributed to juror confusion and affected the jury’s verdict. Trial judges have 

broad discretion in controlling the course and conduct of a trial. Meals ex rel. Meals v. 

Ford Motor Co., 417 S.W.3d 414, 420 n.7 (Tenn. Ct. App. 2013). That discretion 

necessarily extends to their determinations regarding the scope and manner of witness 

examination. Id. As such, we review these issues using the deferential abuse of 

discretion standard. See Lee Med., Inc., 312 S.W.3d at 524. 
- 14 -

The Contestants argue that the trial court erred in failing to deem undisputed facts 

established at trial pursuant to Tennessee Rule of Civil Procedure 56.05. Rule 56.05 

provides that upon denial of a summary judgment motion, the trial court “shall if 

practicable” ascertain what material facts are undisputed and deem them established at 

trial. Tenn. R. Civ. P. 56.05. Although the Contestants argue that the trial court’s failure 

to deem undisputed material facts established at trial contributed to juror confusion and 

affected the jury’s verdict, they do not indicate what specific facts the trial court should 

have deemed established. Rather, they make ambiguous references to “undisputed facts 

showing that Appellee was active in procuring the power of attorney,” and “undisputed 

facts establishing dominion and control.” Additionally, they do not explain how the trial 

court’s failure to designate these unspecified, undisputed facts led to juror confusion. We 

find no abuse of discretion on this issue.

The Contestants argue that the trial court further contributed to juror confusion and 

affected the jury’s verdict when it “impeded [the Contestants’] examination of witnesses 

and ignored abuse by [Mr. Layne’s] counsel.” In support of their argument, they cite, 

largely without explanation, a number of rulings, statements, and other occurrences from 

the trial. For example, they cite the trial judge’s decision to rule on the admissibility of 

Mr. Kelly’s handwritten notes after both parties presented their cases-in-chief, but they

do not explain how it was improper or prejudicial in light of the fact that the notes were 

only relevant as rebuttal evidence. Likewise, they cite the trial judge’s decision to let Ms. 

Kelly identify Mr. Kelly’s signature on Ms. Link’s 1998 will during her initial testimony 

but do not explain how it was prejudicial in light of the fact that Ms. Murphy and Ms. 

Steele also identified Mr. Kelly’s signature on the will. The Contestants cite instances in 

which the trial judge instructed their attorneys, in front of the jury, not to argue with a 

witness, not to display documents before introducing them into evidence, and not to 

summarize witness testimony, but they do not assert that those instructions were 

improper. They cite an instance in which the judge admonished one of their attorneys for 

accusing a witness of lying. They fail to mention, however, that the occurrence took 

place outside of the jury’s presence. They cite two of their own objections that were 

overruled, but they do not explain that the rulings were improper or prejudicial. They 

also cite 27 of Mr. Layne’s objections–16 that were sustained, 7 that were overruled, and 

4 that were not ruled on–with little or no explanation of their significance. They cite four 

leading questions asked by Mr. Layne’s attorney at trial but decline to mention that they 

did not object to three of them and that Mr. Layne’s attorney rephrased the fourth. They 

point out that photocopies, rather than originals, of certain documents were admitted into 

evidence without explaining the relevance of that fact. 

While it appears that the Contestants have taken inventory of every minor 

disruption and distraction that occurred throughout the trial, we are not inclined to infer 

their significance on our own. The Contestants have not demonstrated that the trial 
- 15 -

court’s control over the course of the trial and witness examination caused an injustice to 

them. Thus, having perhaps given the foregoing issues more attention than they deserve, 

we conclude that they do not, separately or collectively, warrant reversal. 

C. Evidentiary Rulings

The Contestants also challenge a number of the trial court’s evidentiary rulings. 

Decisions regarding the admissibility of evidence are within the sound discretion of the 

trial court and are therefore reviewed using the abuse of discretion standard. Shipley v. 

Williams, 350 S.W.3d 527, 552 (Tenn. 2011). Moreover, an erroneous evidentiary ruling 

does not require reversal unless it affects a substantial right of the complaining party. 

Brandy Hills Estates, LLC v. Reeves, 237 S.W.3d 307, 318 (Tenn. Ct. App. 2006). 

Ms. Kelly & the Handwritten Notes

The Contestants argue that the trial court erred in allowing Ms. Kelly to testify and 

in admitting Mr. Kelly’s handwritten notes because they were not timely disclosed in 

compliance with the trial court’s scheduling order and Rule 11.01 of the Twelfth Judicial 

District Local Rules.7 We agree that Mr. Layne’s disclosure of Ms. Kelly and the 

handwritten notes on the eve of trial violated the time limits set forth in the scheduling 

order and local rules. However, trial judges have the discretion to extend the application 

of such time limits. See Tenn. R. Civ. P. 6.02; see also Williams v. Baptist Mem’l Hosp., 

193 S.W.3d 545, 551 (Tenn. 2006) (“[T]he terms of Rule 6.02, dictate that whether to 

grant an enlargement of time is left to the discretion of the trial court.”). Mr. Layne’s 

attorney represented to the trial court that he contacted opposing counsel immediately 

after Ms. Kelly told him the severity of Mr. Kelly’s condition and of the handwritten 

notes. Nothing in the record suggests that those representations were not true and Ms. 

Kelly corroborated them in her testimony. Because Tennessee law requires contested 

wills to be proved by all available living witnesses, Mr. Layne had to present some 

satisfactory evidence that Mr. Kelly was not available or able to testify or lose the case on 

a technicality. To avoid that harsh result, the trial court allowed Ms. Kelly to testify 

initially regarding Mr. Kelly’s availability. In our view, the only harm that decision 

caused the Contestants was that it required them to resolve the case on the merits. Such a 

decision can hardly be considered an abuse of discretion. The trial court reserved ruling 

on the admissibility of Mr. Kelly’s handwritten notes until after an evidentiary hearing. 

The Contestants suggest that the late disclosure of the handwritten notes casts doubt on 

their authenticity but provide no additional evidentiary support for that assertion. Ms. 

Kelly and Ms. Murphy both identified the handwriting in the notes as Mr. Kelly’s 

 

7 Rule 11.01 of the Twelfth Judicial District Local Rules requires that witnesses and exhibits be disclosed 

72 hours prior to trial. 
- 16 -

handwriting. Ms. Kelly testified that Mr. Kelly suffered a stroke in 2011 that severely 

affected his ability to write and her testimony was subjected to cross examination by 

Contestants’ counsel. While it is possible that the notes were fabricated on the eve of 

trial, the probative evidence in the record suggests that they are authentic. In any event, 

neither party attempted to depose Mr. Kelly or obtain a subpoena for his files despite the 

fact that they both anticipated that he would be called as a witness. Had they done so, the 

severity of his condition and the existence of the handwritten notes likely would have 

been discovered much earlier. As it happened, the trial court was faced with a decision 

between withholding relevant evidence from the jury to Mr. Layne’s detriment or 

excusing the untimely disclosure and allowing the jury to consider all of the relevant 

evidence. Given the circumstances, we believe that choosing either option would have 

been acceptable. When a decision reflects a choice between two acceptable alternatives, 

we are not permitted to substitute our judgment for that of the trial court. We therefore 

find no abuse of discretion in the trial court’s decision. 

Ms. Link’s 1998 Will

Notwithstanding their argument that Ms. Kelly should not have been allowed to 

testify, the Contestants argue that the trial court erred in admitting Ms. Link’s 1998 will 

because Ms. Kelly’s testimony failed to establish that Mr. Kelly was not available to 

testify. 

Tennessee law requires the proponent of a contested will to present the testimony 

of all living witnesses to the will’s execution or demonstrate that they are not available. 

Swindoll v. Jones, 292 S.W.2d 531, 541 (Tenn. Ct. App. 1954). It is the trial judge’s 

function to determine whether the proponent of the will has complied with that 

requirement. Id. A trial court’s decision regarding the availability of a living witness to a 

contested will is discretionary. Id. 

The Contestants argue that Ms. Kelly’s testimony regarding Mr. Kelly’s ability to 

communicate was inconsistent and therefore insufficient to establish that he was not 

available. They cite various portions of Ms. Kelly’s testimony in support of that 

assertion. For example, during direct examination Ms. Kelly stated that Mr. Kelly’s 

“ability to produce the words, even in writing the ability to produce the words is not 

there.” Later, however, she testified that “I know pretty much most of the time what he 

wanted to say,” and that “now he has to write with his left hand.” While these statements 

may seem inconsistent standing on their own, they are not in the full context of Ms. 

Kelly’s testimony. Ms. Kelly testified that Mr. Kelly has the ability to form short words, 

such as “yes” and “no,” but cannot use them consistently to communicate what he 

actually means. For example, when asked if he would like a drink, he might respond by 

saying “yes,” but upon receiving the drink, might reject it. She testified that Mr. Kelly 
- 17 -

struggled similarly with written communication. She explained that the stroke left Mr. 

Kelly, who had been right-handed previously, paralyzed on his right side. She later 

testified that he had improved signing his name with his left hand but usually could not 

write complete words. Read as a whole, Ms. Kelly’s testimony reflects, quite clearly, 

that Mr. Kelly cannot consistently produce the words he intends to produce. Particularly 

as it relates to testifying in front of a jury, a person’s ability to produce words is 

essentially useless if their words do not convey the intended information. 

The Contestants also argue that, even if Ms. Kelly’s testimony sufficiently 

established that Mr. Kelly could not communicate verbally or in writing, it did not 

establish that he was unable to comprehend questions posed to him. They assert that Mr. 

Kelly could have therefore been physically present in the courtroom and answered 

questions posed to him using physical gestures. This argument requires little discussion. 

To require a partially paralyzed individual with severely deficient motor skills to appear

in front of a jury for the sole purpose of using physical gestures to confirm the validity of 

a document when there is no contravening evidence that the document is invalid and 

multiple other individuals have confirmed its validity would be an exercise in futility and 

perhaps even abuse. We decline to countenance such an exercise. The trial court, having 

heard the testimony and observed the witnesses, found that Mr. Kelly was not available to 

testify, and we are satisfied that the record supports its determination. We therefore 

conclude that the trial court did not err in admitting Ms. Link’s 1998 will. 

Other Evidentiary Arguments

The Contestants raise numerous other challenges to the trial court’s evidentiary 

rulings. We will address each in turn beginning with their assertion that the trial court 

erred in allowing evidence of Ms. Link’s nursing home expenses and the value of her 

estate to be admitted at trial. The record reflects that Mr. Layne testified regarding the 

cost of Ms. Link’s nursing home expenses and the Contestants did not object to it. That 

issue is therefore waived. See Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006). In 

their brief, the Contestants state, “the value of Ms. Link’s estate was undisputed and 

should not have been reduced to any amount, so this evidence and argument misled the 

jury.” The record reflects, however, that the Contestants’ attorney asked Reed Durham, 

“And did Ms. Link die with a good bit of money for Jasper, Tennessee standards?” 

Later, the Contestants’ attorney asked Mr. Layne, “How much money did Ms. Link die 

with?” and Mr. Layne’s attorney objected. Indeed, the only statement to the jury 

regarding the specific value of Ms. Link’s estate was that of the Contestants’ attorney in 

closing arguments that, “[Mr. Layne is] getting everything but $10,000 of a $750,000 

estate.” This argument has no merit. 
- 18 -

Next, the Contestants argue that the trial court erred in excluding evidence related 

to the estate of Nora Rogers. Ms. Rogers was another one of Mr. Layne’s aunts. During 

a deposition, Mr. Layne acknowledged that he was the sole beneficiary of Ms. Rogers’s 

will. Before trial, Mr. Layne filed a motion to exclude evidence related to Ms. Rogers

and her will. The trial court denied the motion and ordered Mr. Layne to bring Ms. 

Rogers’s will to trial if it was still in existence. At trial, Mr. Layne testified that he could 

not find the will and was sure that it had been destroyed. The trial judge then instructed 

the Contestants’ attorneys not to question Mr. Layne any further about the disposition of 

Ms. Rogers’s estate. The Contestants argue that they should have been allowed to 

continue questioning Mr. Layne about Ms. Rogers to demonstrate his modus operandi. 

Standing alone, however, the fact that Mr. Layne was the sole beneficiary of another 

relative’s will has little relevance in this case. We find no abuse of discretion on this 

issue.

The Contestants also argue that the trial court erred in excluding evidence that Ms. 

Link transferred silverware to Mr. Layne during her lifetime. During a deposition, Mr. 

Layne acknowledged that Ms. Link gave him a set of silverware sometime between 1998 

and 2007. Mr. Layne filed a motion to exclude evidence of the transfer, as it would not 

be relevant in determining the validity of Ms. Link’s 1998 will. The trial court granted 

the motion. The Contestants argue that the trial court erred in excluding evidence of the 

silverware transfer because it occurred after Ms. Link executed a power of attorney in 

favor of Mr. Layne giving rise to a presumption that it was procured through undue 

influence. This argument has no merit. The Contestants’ amended complaint contests 

only the validity of Ms. Link’s 1998 will; it does not contest the silverware transfer. As 

such, we conclude that the trial court did not abuse its discretion in excluding that

evidence. 

Finally, the Contestants argue that the trial court erred in excluding evidence of an 

inappropriate personal relationship between two witnesses to the execution of Ms. Link’s 

1998 will. At trial, the Contestants’ attorney attempted to elicit testimony on that subject. 

Mr. Layne’s attorney objected, and the judge ruled that the evidence was not relevant. 

Nevertheless, the judge permitted the Contestants’ attorney to continue the line of 

questioning outside the jury’s presence. The Contestants argue that the evidence should 

have been presented to the jury because subscribing witnesses to a will’s execution who 

are engaged in an inappropriate relationship might be willing to compromise their usual 

execution procedures. Even if that were true, however, the testimony elicited outside the 

jury’s presence reflects that the relationship in question did not begin until October 1998–

months after Ms. Link’s will was executed. We therefore conclude that the trial court did 

not abuse its discretion in excluding the evidence.
- 19 -

D. Jury Instructions & Verdict Form

The Contestants raise a number of challenges to the trial court’s jury instructions 

and verdict form. Specifically, they contend that trial court erred by (1) rejecting their 

requested jury instructions, (2) delivering an inaccurate instruction on forgery, (3) 

delivering an inaccurate instruction on undue influence, (4) failing to instruct the jury 

regarding missing evidence, (5) calling the jury’s attention to inadmissible evidence, and 

(6) using a general verdict form. We will address each of these issues in turn.

Will contests are often surrounded by confusion and uncertainty, and the trial 

court’s instructions are the only proper source of legal principles to guide the jury in their 

deliberations. In re Estate of Eden, 99 S.W.3d at 91. Although we give the trial courts 

leeway regarding the substance of their instructions, the instructions should be 

substantially accurate statements of the law applicable to the issues the jury must decide. 

Id. Determining the scope and substance of the jury instructions requires consideration of 

the parties’ theories, the evidence presented, and the applicable law. Id. The instructions 

are not measured against a standard of perfection, as long as they fairly define the legal 

issues involved in the case and do not mislead the jury. Brandy Hills Estate, LLC, 237 

S.W.3d at 319. When reviewing a trial court’s jury instructions on appeal, we review the 

entire charge, just as the jury would, in order to determine whether the trial judge 

committed a prejudicial error. Id. We may consider the jury instructions in conjunction 

with the verdict form in determining whether the issues were presented to the jury in a 

clear and fair manner. Payne v. CSX Tansp., Inc., 467 S.W.3d 413, 446 (Tenn. 2015).

Requested Jury Instructions

The Contestants argue that the trial court erred in rejecting their requested jury 

instructions because the parties could not agree to jury instructions before trial. When a 

special instruction is requested that is not included in the general charge and is supported 

by the evidence introduced at trial, the trial court should give the instruction. Johnson v. 

Tenn. Farmers Mut. Ins. Co., 205 S.W.3d 365, 372 (Tenn. 2006). However, reversal is 

only appropriate when the improper denial of requested instructions has prejudiced the 

rights of the requesting party. Id. In this case, both parties submitted proposed jury 

instructions to the trial court prior to trial. During a pre-trial conference, the trial judge 

noted “a significant amount of difference” between the parties’ proposed instructions and 

directed the attorneys to work together to come up with one set of instructions. Later, 

when the attorneys represented to the judge that they had not been able to reach an 

agreement, the judge indicated that he would instruct the jury using the Tennessee Pattern 

Jury Instructions. We discern no reversible error in the trial court’s decision. As we 

explain in greater detail below, the trial court’s jury instructions were substantially 
- 20 -

accurate statements of the applicable law. We therefore discern no prejudice in the trial 

court’s decision. 

Forgery Instruction

The Contestants argue that the trial court delivered an inaccurate jury instruction 

on forgery. The trial court instructed the jury that the Contestants had the burden of 

establishing that the signatures or markings on Ms. Link’s 1998 will were forgeries. The 

Contestants argue that the trial court should have instructed the jury on the manner in 

which evidence that suggests a contested will has been altered shifts the burden of proof 

to the will’s proponent to demonstrate that the will is valid. As we explained above, 

proof of due execution generally creates a presumption that a contested will is valid, and 

the burden shifts to the contestant to demonstrate that the will is invalid. In re Estate of 

Eden, 99 S.W.3d at 88. In Haynes v. Mullins, 209 S.W.2d 278, 279 (Tenn. Ct. App. 

1947), however, this Court held that when “the physical condition of the paper offered for 

probate is such as to excite suspicion,” the burden remains on the proponent to dispel the 

suspicious circumstances surrounding its execution. In Haynes, there was evidence that 

the names of the subscribing witnesses were added to the contested will after it was 

submitted to probate and that the testator’s signature and the name of notary had been 

traced. Id. at 279-80. As such, the court held that the burden of proof remained on the 

will’s proponent to remove the suspicion of forgery by showing that the alterations were 

not material or were made in good faith. Id. at 279. The Contestants assert that multiple 

sets of staple holes in Ms. Link’s 1998 will, a misspelling of Ms. Link’s name in the 

attached affidavit, and the fact that Article II of the will has a subsection “A” and no 

subsection “B” are similar indicators of forgery such that the burden of proof remained 

on Mr. Layne to remove the suspicion that Ms. Link’s 1998 will was forged. We 

disagree. None of those features “excites suspicion” that the will was forged or altered. 

Accordingly, we are satisfied that the trial court’s jury instruction on forgery was 

accurate. 

Undue Influence Instruction

The Contestants argue that the trial court delivered an inaccurate jury instruction 

on undue influence. The trial court’s jury instruction on undue influence largely tracked 

Tennessee Pattern Jury Instruction–Civil 11.39 (“TPI 11.39”). While the Tennessee 

Pattern Jury Instructions are a valuable resource for trial courts, they do not have the 

force of law and are subject to objection and reversal like all other jury instructions. See 

Matlock, 902 S.W.2d at 386 (rejecting Tennessee Pattern Jury Instruction–Civil 11.60). 

The Contestants submit that the trial court’s jury instruction on undue influence was 

inconsistent with Tennessee law for several reasons. 
- 21 -

First, the Contestants argue that the trial court’s instruction was inaccurate because 

it misstated the evidence required to create a presumption of undue influence. Tennessee 

courts have held that “a presumption of undue influence arises when there is a 

confidential relationship followed by a transaction in which the dominant party receives a 

benefit from the other party.” See, e.g., In re Estate of Price, 273 S.W.3d at 125. Here, 

the trial court instructed the jury a presumption of undue influence would arise if they 

found that Mr. Layne had a confidential relationship with Ms. Link, “was active in 

causing the will to be made, and unduly profited from it.”8 The Contestants argue that the 

trial court’s instruction placed an excessively high burden on them in establishing a 

presumption of undue influence. We disagree. Requiring the party contesting a will to 

show that the proponent was “active in causing the will to be made” in order to create a 

presumption of undue influence is a substantially accurate statement of the law. As we 

explained above, undue influence, at its core, contemplates some coercive conduct aimed 

at destroying the testator’s free agency to such an extent that the stronger will of the 

proponent overcomes the will of the testator. Keasler, 973 S.W.2d at 220. It is therefore 

obvious that the proponent must have played a role in causing the will to be made in 

order for a presumption that they procured it through undue influence to arise. Were that 

not the case, undue influence would be presumed anytime a testator devised property to a 

person with whom they shared a confidential relationship, even when it was undisputed 

that the dominant party was not involved in causing the will to be made. Such a rule 

would defy logic and undermine the core definition of undue influence. Likewise, 

requiring the party contesting a will to show that the proponent has “unduly profited” 

from the will is a substantially accurate statement of the law. There is no meaningful 

distinction between the words “profit,” as used by the trial court, and “benefited,” as used 

in the cases cited by the Contestants. The trial court’s insertion of the word “unduly” 

does little to affect the instruction’s overall meaning. The ultimate issue is, after all, 

whether the proponent exerted undue influence over the testator in causing the will to be 

made. If a person exercised undue influence to obtain some profit or benefit that was 

rightfully due them, there would be little basis for invalidating the transaction. 

Next, the Contestants argue that the trial court’s instruction was inaccurate 

because it did not accurately define a confidential relationship that arises as a matter of 

law. Specifically, they argue that the trial court’s instruction precluded the jury from 

finding a confidential relationship existed between Mr. Layne and Ms. Link unless it 

determined that Mr. Layne exercised his power of attorney prior to the execution of Ms. 

Link’s 1998 will. As we explained previously, confidential relationships can assume a 

variety of forms, and the courts have generally been reluctant to define what constitutes a 

 

8 The trial court’s instruction differed slightly from TPI 11.39, which provides that a presumption of 

undue influence arises when there is a confidential relationship and the proponent “was active in causing 

the will to be made and benefitted from it.” 
- 22 -

confidential relationship. Kelley, 96 S.W.3d at 197. Nevertheless, a confidential 

relationship may arise as a matter of law when an unrestricted power of attorney is 

executed in favor of and exercised by the dominant party prior to the will’s execution. 

Childress, 74 S.W.3d at 329. Here, the trial court instructed the jury, “[a] confidential 

relationship arises as a matter of law when an unrestricted Power of Attorney is granted 

to the dominant party and is in fact exercised and used.” However, the trial court also 

stated, “[a] confidential relationship exists whenever the trust and confidence of one 

person is placed in the honesty and faithfulness of another.” The instruction was 

therefore broad enough that it allowed the jury to consider any number of factors in 

determining whether a confidential relationship existed between Mr. Layne and Ms. Link. 

Next, the Contestants argue that the trial court’s instruction was inaccurate 

because it did not accurately instruct the jury on the manner in which the proponent of a 

will can rebut a presumption of undue influence. They contend that the trial court should 

have instructed the jury that a presumption of undue influence may be overcome by clear 

and convincing evidence of the transaction’s fairness. As the Contestants point out, 

many Tennessee cases provide that the presumption of undue influence may be overcome 

by clear and convincing evidence of the fairness of the transaction. See, e.g., In re Estate 

of Maddox, 60 S.W.3d at 89. Here, the trial court instructed the jury that the presumption 

of undue influence “may be overcome if the proponent proves by clear and convincing 

evidence that the making of the will was not the result of undue influence.” The trial 

court did not instruct the jury to consider the “fairness of the transaction.” As we alluded 

to previously, however, using the term “fairness” in a jury instruction can be problematic 

because of the possibility that the jury may associate it with the testator’s moral duty to 

provide for certain individuals:

Without the term being carefully defined the average jury might assume 

that it was being asked to find whether the person benefitting from the will 

deserved what the will provided. That is not the meaning of the term. The 

jury should not be concerned with the question of whether the testator did 

right by those who ordinarily would be the objects of the testator’s bounty. 

The jury’s function is limited to a determination of the testator’s capacity to 

make a will and whether the provisions in the will were arrived at through 

the free agency of the testator rather than through the imposition of 

someone else’s will. If the jury finds in favor of the will on these two 

questions it has found that the transaction was fair.

In re Matter of Depriest, 733 S.W.2d at 79. Given the risk of juror confusion associated 

with the term, the trial court’s omission of the word “fairness” from its instruction does

not constitute a reversible error. The trial court’s instruction was a substantially accurate 

statement of the law. It was therefore sufficient and will not be disturbed. 
- 23 -

Missing Evidence Instruction 

The Contestants argue that the trial court erred in failing to give an instruction on 

missing evidence. When a party fails to produce evidence capable of shedding light on a 

contested issue, the opposing party may be entitled to an instruction that the jury is 

permitted to infer that the missing evidence would have been unfavorable to the party 

possessing it. See Richardson v. Miller, 44 S.W.3d 1, 27-28 (Tenn. Ct. App. 2000). 

When the missing evidence is a document, the party seeking a missing evidence 

instruction must demonstrate that the document existed and was in its adversary’s 

exclusive control and that the party possessing the document could have produced it. Id. 

at 28. The Contestants argue that a missing evidence instruction was warranted in this 

case because Mr. Layne destroyed numerous documents that were relevant to the 

litigation over which he had exclusive control and did so without providing a reasonable 

explanation. In support of that assertion, they cite Mr. Layne’s failure to produce Ms. 

Link’s genealogy records, master’s thesis, driver’s license, marriage license, recipe 

books, vehicle registration, as well as certain bank records and income tax returns that 

they assert would have been in Ms. Link’s house or safe deposit box. They also cite his 

failure to produce Ms. Rogers’s will. Many of those documents bear little, if any, 

relevance to this litigation. Furthermore, there is nothing, beyond the pure speculation of 

the Contestants, to suggest that any of the aforementioned documents were ever in Mr. 

Layne’s exclusive control during the pendency of these proceedings. The Contestants 

also cite Mr. Layne’s failure to produce documents showing who scheduled Ms. Link’s 

appointments with Mr. Kelly or who paid Mr. Kelly to draft Ms. Link’s 1998 will. 

However, there is no evidence such documents exist or have ever been in Mr. Layne’s 

possession. As such, we are satisfied that no missing evidence instruction was necessary 

in this case. 

Inadmissible Evidence

The Contestants argue that the trial court’s jury instructions drew attention to 

inadmissible evidence. In addition to Mr. Kelly’s handwritten notes, Ms. Kelly also 

produced a 1996 will executed by Ms. Link from Mr. Kelly’s files on the eve of trial. 

The trial court admitted the handwritten notes but excluded the 1996 will. In an effort to 

keep the jury from considering the 1996 will, the trial judge ordered that references to the 

1996 will be redacted from the 1998 notes. When trial resumed the following day, the 

Contestants’ attorney asked Ms. Kelly whether there was a copy of Ms. Link’s 1989 will 

in Mr. Kelly’s files, and she responded, “No. There was a 1996 will in there.” After the 

close of proof, Mr. Layne’s attorney requested that the court give a special instruction 

regarding the redaction in the handwritten notes. The trial judge informed the jury that 

the redaction was made at his direction and they should not think the notes were altered 
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by one of the parties. We fail to see how that instruction was impermissible or 

inappropriate. While the Contestants argue that Ms. Kelly’s reference to the 1996 will 

gave them the right to request a curative instruction directing the jury not to consider 

inadmissible evidence for any purpose, the record does not reflect that they ever 

requested such an instruction. As such, we find no error on the part of the trial court.

Verdict Form

Finally, the Contestants argue that the trial court’s verdict form caused juror 

confusion and affected the jury’s verdict. Trial courts have wide discretion in tailoring 

the questions on a verdict form to meet the needs of each unique case. Concrete Spaces, 

Inc. v. Sender, 2 S.W.3d 901, 910 (Tenn. Ct. App. 1999). When a party advances 

multiple theories of relief, common sense principles should guide the attorneys and the 

judge in preparing both the jury instructions and the verdict form. Id. Verdict forms 

should use the same terms as those used in the jury instructions and should repeat and 

highlight important issues discussed in the instructions. Id. A new trial is warranted 

when a verdict form does not address each theory of relief and allow the jury to respond 

to them adequately. Id. at 911. Even when a verdict form is defective, the jury’s verdict 

will be upheld as long as it sufficiently defines the issues in such a way as to enable the 

court to intelligently articulate a judgment. Id. Here, the interrogatories listed on the 

verdict form and the jury’s answers to the interrogatories were:

1. Do you find that Gertrude Bible Link had the testamentary capacity to 

execute the contested will?

 X YES

 NO

2. Did Gertrude Bible Link have the testamentary intent to execute the 

contested will?

 X YES

 NO

3. Do you find that the contested will was forged?

 YES

 X NO

4. Do you find that the contested will was the product of undue influence?

 YES

 X NO

5. Do you find that the contested will was the product of fraud?
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 YES

 X NO

6. Do you find that the instrument executed on March 11, 1998 to be the 

valid, executed Last Will and Testament of Gertrude Bible Link?

 X YES

 NO

Thus, the jury answered a series of interrogatories or questions related to each of the 

theories advanced by the Contestants and a final interrogatory regarding the validity of 

Ms. Link’s 1998 will. The jury’s responses are not inconsistent, and there is nothing to 

suggest that the verdict form was confusing. The Contestants assert that the trial court’s 

instructions did not adequately define terms used in the verdict form, such as 

“testamentary capacity” and “testamentary intent.” That assertion is not supported by the 

record. The trial court’s instructions used both terms multiple times and explained both 

the mental capacity necessary to execute a will and that the contested document must 

reflect that it is, in fact, the testator’s will. Based on the foregoing, we do not find error 

in the verdict form submitted to the jury by the trial court. 

E. Supplemental Instruction & Ex Parte Communications

The Contestants argue that the trial judge erred in delivering a “dynamite charge” 

that emphasized the time and money the parties invested in trying the case and that it 

affected the jury’s verdict. The “dynamite charge” is a supplemental jury instruction that 

gained national prominence following the United States Supreme Court’s opinion in 

Allen v. United States, 164 U.S. 492, 501-502 (1896), which upheld, in a criminal case, a 

jury instruction encouraging dissenting jurors to consider whether their doubt was 

reasonable when the majority of jurors were for conviction. In the years that followed, 

however, both federal and state courts widely criticized Allen for suggesting that minority 

members of a jury should surrender their convictions to the majority. See, e.g., U.S. v. 

Fioravanti, 412 F.2d 407, 420 (3d Cir. 1969) (“Hereafter, in this circuit, trial judges are 

not to give instructions . . . that direct a juror to distrust his own judgment if he finds a 

large majority of the jurors taking a view different from his.”); State v. Randall, 353 P.2d 

1054, 1058 (Mont. 1960) (“The inevitable effect of the instruction would be to suggest to 

the minority members of the jury that they ought to surrender their own convictions and 

follow the majority.”). In 1975, the Tennessee Supreme Court added our state to the list 

of jurisdictions rejecting Allen with its opinion in Kersey v. State, 525 S.W.2d 139 (Tenn. 

1975) (“We view these charges as being tantamount to a judicially mandated majority 

verdict which is impermissible under Tennessee law.”). In doing so, the Kersey Court 

also set forth a pattern instruction to be used as part of any supplemental instruction in the 
- 26 -

event of an impasse in the deliberations of the jury. Id. at 145. The Court declared that 

variations from the following form were impermissible:

The verdict must represent the considered judgment of each juror. 

In order to return a verdict, it is necessary that each juror agree thereto. 

Your verdict must be unanimous.

It is your duty, as jurors, to consult with one another and to 

deliberate with a view to reaching an agreement, if you can do so without 

violence to individual judgment. Each of you must decide the case for 

yourself, but do so only after an impartial consideration of the evidence 

with your fellow jurors. In the course of your deliberations, do not hesitate 

to reexamine your own views and change your opinion if convinced it is 

erroneous. But do not surrender your honest conviction as to the weight or 

effect of evidence solely because of the opinion of your fellow jurors, or for 

the mere purpose of returning a verdict.

Id. at 145.9 In 1978, the Tennessee Supreme Court held that its opinion in Kersey

extended to civil cases. Vanderbilt Univ. v. Steely, 566 S.W.2d 853 (Tenn. 1978). In 

doing so, the Court was particularly critical of supplemental instructions that place an 

emphasis on the time, money, and effort that a new trial would require. Id. at 854. 

In this case, several hours after the jury was excused for deliberations, the trial 

judge informed the parties’ attorneys that the jury did not expect to reach a verdict and 

that some of the jurors would not be able to return the following day. He told the 

attorneys that, in an effort to avoid a mistrial, he could give the jury “a little dynamite 

charge” to explain the importance of their role. Although the judge stated that he did not 

have a prepared supplemental instruction, neither party objected. The jury returned to the 

courtroom, and the judge gave them the following supplemental instruction: 

What I want to say to you is this: This case has been in the 

development stage for about two years, and these folks have spent an awful 

lot of money to get this case prepared. It’s been a well-tried case. They’ve 

poured their hearts into it. If I send you home with a mistrial, essentially 

they’re going to have to do this all over again, and 12 more people or 14 

people, whatever we start with – we’ll end up with 12 -- will have to do it 

again. 

 

9 The instruction set forth in Kersey has since been adopted, nearly verbatim, as Tennessee Pattern Jury 

Instruction–Civil 15.17 Instructions as to Unanimous Verdict. 
- 27 -

They’ve made a really honest effort. They would like you to resolve 

this problem for them today. I know you’re probably tired. This is your 

third day here. There have been a lot of things and these questions aren’t 

necessarily easy to answer.

. . .

Think about what I’ve charged you. And I want to remind you that 

I’ve asked you, you know, to consult with one another and to reach an 

agreement if you can do so without violence to your individual judgment. I 

don’t want to emphasize that violent part; I’ve already talked about that. 

But each of you must decide the case for yourself -- I’m reading 

again -- but do so only after an impartial consideration of the evidence, with 

your fellow jurors. In the course of your deliberations, do not hesitate -- do 

not hesitate to reexamine your own views and to change your opinions if 

you are convinced that your opinion is not correct. But you don’t have to --

it says, “Surrender your honest conviction as to the weight or effect of the 

evidence solely because of the opinion of your fellow judges [sic].” 

It’s anticipated that you might not agree. But think about the effect 

of it and think about whether, in this 15-minute break that you have, 

whether or not you just have gotten yourself into a corner and maybe you 

can change your mind. 

Following the supplemental instruction, the jury was excused for further deliberations. 

Sometime thereafter, the parties’ attorneys informed the judge that they would accept a 

majority verdict. Nevertheless, after further deliberation the jury eventually returned a 

unanimous verdict upholding Ms. Link’s 1998 will.

The Contestants argue that the trial court’s supplemental instruction in this case 

constituted a “dynamite charge” similar to those rejected by the Tennessee Supreme 

Court in Kersey and Steely. While the trial court’s mention of the time and money 

invested in the case was inadvisable, it does not require reversal in this case for three 

reasons. First, when the judge informed the parties’ attorneys that the jury was 

deadlocked, he stated, “I can give [the jury] a little dynamite charge. I don’t have a 

written charge to that effect, but explain to them the importance of the jury system, the 

importance of their efforts to reach a unanimous verdict, and ask them to go back there 

and stay awhile.” Despite the judge’s representation that he did not have a written charge 

prepared, neither party objected. Thus, given the choice between a possible mistrial and 

an improvised supplemental instruction, both parties chose the latter. Second, the trial 
- 28 -

court’s supplemental instruction, in large part, tracked the language set forth in both 

Kersey and adopted by the Tennessee Pattern Jury Instructions. The court did not instruct 

the jury that jurors holding the minority view should surrender their convictions and 

follow the majority. See Kersey, 525 S.W.2d at 140 (“[T]he minority should listen to the 

views of the majority with the disposition of being convinced.”). Similarly, the court did 

not instruct the jurors that they had a duty to agree. See Steely, 556 S.W.2d at 855 (“[I]t 

is the duty of each and every juror to agree upon a verdict if he can conscientiously do 

so.”). Rather, the trial judge expressly instructed the jurors that they were not required to 

surrender their honest convictions as to the weight or effect of the evidence solely 

because of the opinion of their fellow jurors. In our view, a reference to time and money 

invested in the case, although inadvisable, is not necessarily grounds for reversal when 

made in the context of an otherwise appropriate supplemental instruction. Third, the 

record reflects that the parties agreed to accept a majority verdict after the trial court gave 

its supplemental instruction.10 As we explained above, the primary concern expressed by 

courts in rejecting the dynamite charge is that it may impair the right to a unanimous 

verdict by coercing jurors holding the minority view in deliberations to surrender their 

beliefs and follow the majority. See Kersey, 525 S.W.2d at 144. No such risk exists 

when, as in this case, the parties have agreed to accept a majority verdict. In light of the 

foregoing, we conclude that the trial court’s supplemental instruction does not require 

reversal of the jury verdict.

Next, the Contestants submit that the trial judge’s ex parte communications with 

the jury require reversal. The Tennessee Supreme Court addressed the propriety of a trial 

judge’s ex parte communications with the jury in Spencer v. A-1 Crane Services, Inc., 

880 S.W.2d 938 (Tenn. 1994). The Spencer Court condemned the practice, stating, 

“Such communication is always error and should not occur under any circumstances.” 

Id. at 941. Nevertheless, it did not hold that every ex parte communication requires 

reversal. Id. Instead, it provided the following guidance in determining whether an ex 

parte communication requires reversal:

The best position seems to us to be that a trial judge’s ex parte

communication with a jury in a civil case does not require reversal per se, 

but reversal is required where a timely complaining party shows specific 

prejudice or where, owing to the nature of the ex parte communication, the 

reviewing court is unable to determine whether the action was actually 

harmless.

 

10 Rule 48 of the Tennessee Rules of Civil Procedure permits parties in a civil action to “stipulate that the 

jury shall consist of any number less than that provided by law, or that a verdict or a finding of a stated 

majority of the jurors shall be taken as the verdict or finding of the jury.”
- 29 -

Id. (emphasis in original) (quoting Guy v. Vieth, 754 S.W.2d 601, 605 (Tenn. 1988)). 

In this case, the trial judge communicated with the jury off the record and out of 

the presence of the parties and their attorneys after giving his supplemental instruction. 

In their post-judgment motion, the Contestants raised the issue as one of 43 alleged errors 

that they argued necessitated a new trial. Their full discussion of the issue in the motion 

states, “The trial judge engaged in ex parte communications with the jury.” The trial 

judge addressed the issue at its hearing on the post-judgment motion as follows:

I’m not going to try to go through each and every thing that you put 

forth, but I think at the end of the day, one of the things that troubles me . . . 

is number 38, that the trial judge engaged in ex parte communications with 

the jury. That’s a pretty broad statement, and it could be mischaracterized 

as I sat back there in the jury room and sat around and talked with them, 

which is not true.

The event that occurred -- and you all didn’t specify what it was, but 

you hint around it, [was] that after the Court had given the dynamite charge 

and given the jury an opportunity to step out in the hall and -- or outside 

and take a break, the foreman or foreperson of the jury sent a message to 

me in chambers through the bailiff that there had been maybe some 

intimidation after the jury charge. One witness -- excuse me -- one juror 

had gone to another juror and said something to the effect [of], “You need 

to change your vote.”

I wish I had put that on the record. I wish we had gone into the 

courtroom and I had them put that in writing, but they were instructed to 

certainly notify me if there was anything of any concern and they did. And, 

as I said, the better way would have been to have done that in writing.

But to cure that, I called all of you into my chamber and I outlined 

for you what had happened. I disclosed it as I knew it and neither of you 

objected to the manner in which I had handled it. And the manner in which 

I had handled it was to simply ask that juror, as the instructions called for --

and I think I explained that to you all in chambers -- was to, you know, 

don’t give up on your feelings but be willing to consider the opinions of 

others. And I simply asked them to do that. 

. . .
- 30 -

Now, with regard to that, I think that’s worthy of my having stated 

it. I think it’s clear that you all had an opportunity at the trial or before the 

verdict to make an objection and no objection was made to the manner in

which that was handled. Full disclosure was made of what had happened. 

And I don’t know of any other way to have disclosed it other than that. 

The Contestants do not dispute that the trial judge’s explanation of the ex parte

communication is accurate. As such, they implicitly concede that they did not object to 

the communication after learning about it at trial. Moreover, they have not shown any 

specific prejudice from the communication. While the Contestants assert that the judge 

could have engaged in other ex parte communications with the jury, there is nothing in 

the record to suggest that he did. It therefore appears that the judge’s only ex parte

communication with the jury consisted of an attempt to reiterate his previous jury 

instructions that were made on the record in open court. While the communication was 

not advisable, it does not require a new trial. 

F. Thirteenth Juror

The Contestants argue that the trial judge misconstrued his role as thirteenth juror 

and approved the jury’s verdict for a reason other than his own satisfaction with the 

verdict based on an independent evaluation of the evidence. Rule 59.06 of the Tennessee 

Rules of Civil Procedure provides that a trial court may grant a new trial because the 

verdict is contrary to the weight of the evidence. When a party moving for a new trial 

asserts that the jury’s verdict was contrary to the weight of the evidence, it is the trial 

judge’s duty to independently weigh the evidence to determine whether it preponderates 

against the verdict and, if so, to grant a new trial. Jones v. Tenn. Farmers Mut. Ins. Co., 

896 S.W.2d 553, 556 (Tenn. Ct. App. 1994). Like the jury, the trial judge is not bound to 

give any reasons for its decision to grant or deny a new trial based on the preponderance 

of the evidence. Cooper v. Tabb, 347 S.W.3d 207, 221 (Tenn. Ct. App. 2010). When the 

trial judge approves the verdict without comment, the appellate court will presume that 

the trial judge adequately performed his or her function as the thirteenth juror. Id. 

However, a statement indicating that the trial judge has misconceived his or her duty is 

grounds for reversal on appeal. Shivers v. Ramsey, 937 S.W.2d 945, 947 (Tenn. Ct. App. 

1996). 

Here, in its hearing on the Contestants’ post-judgment motion, the trial judge 

stated, “I believe that having sat through that trial, listened to the witnesses, that I think 

there was sufficient material evidence to support the jury’s finding. And as 13th juror, I 

would not overturn the jury’s verdict for that reason.” On appeal, the Contestants submit 

that this statement indicates the judge deferred to the jury’s verdict without independently 

weighing the evidence. We do not share that interpretation of the statement. In our view, 
- 31 -

the statement merely indicates the judge’s satisfaction that there was sufficient evidence 

from which the jury could have resolved the case the way it did. This interpretation is 

consistent with our analysis of similar statements made by trial judges in past cases. See

Washington v. 822 Corp., 43 S.W.3d 491, 494-95 (Tenn. Ct. App. 2000) (reaching the 

same conclusion regarding the trial judge’s statement, “It appears to the Court now that 

the jury verdict in this cause is supported by sufficient evidence and therefore should not 

be disturbed”). Accordingly, we are satisfied that the trial judge adequately performed 

his role as the thirteenth juror.

G. Material Evidence

Finally, the Contestants argue that the jury’s verdict is not supported by sufficient 

evidence in the record. When the trial court approves a jury verdict, the appellate courts 

may only review the record to determine whether it contains material evidence to support 

the verdict. See Tenn. R. App. P. 13(d); Overstreet, 4 S.W.3d at 718. This Court has 

described material evidence as “such relevant evidence as a reasonable mind might 

accept as adequate to support a rational conclusion and such as to furnish a reasonably 

sound basis for the action under consideration.” White v. Premier Med. Grp., 254 

S.W.3d 411, 417 (Tenn. Ct. App. 2007) (citations omitted). In determining whether a 

jury’s verdict is supported by material evidence, the appellate court does not determine 

the credibility of witnesses or weigh evidence. Reynolds v. Ozark Motor Lines, Inc., 887 

S.W.2d 822, 823 (Tenn. 1994). Rather, it must “(1) take the strongest legitimate view of 

all the evidence in favor of the verdict; (2) assume the truth of all evidence that supports 

the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4) discard all 

[countervailing] evidence.” In re Estate of Blackburn, 253 S.W.3d at 613 (citations 

omitted). If, after doing so, there is material evidence to support the jury’s verdict, then 

the appellate court must affirm the judgment. Overstreet, 4 S.W.3d at 718. 

The jury found that Ms. Link had the requisite testamentary capacity to execute 

her 1998 will. The law requires that the testator’s mind be sufficiently sound to enable 

him or her to know and understand the force and consequence of the act of making the 

will. In re Estate of Elam, 738 S.W.2d 169, 171 (Tenn. 1987). The testator must have an 

intelligent consciousness of the nature and effect of the act, knowledge of the property 

possessed, and an understanding of the disposition to be made. Id. In determining 

testamentary capacity, the mental condition of the testator at the very time of the will’s 

execution is the only point of inquiry but evidence of the testator’s mental condition both 

before and after making the will, if not too remote in time, may be presented. Id. 

Moreover, if there is a properly executed will, it is presumed that the testator was of 

sound mind and possessed the requisite testamentary capacity to make the will. Keasler, 

973 S.W.2d at 216. Here, Carlynn Newcom and Reed Durham both testified that Ms. 

Link had her “wits about her” in 1998. Don Durham testified that Ms. Link “appeared to 
- 32 -

be” in her right mind in 2001. Additionally, Mr. Kelly’s handwritten notes from a March 

5, 1998 meeting with Ms. Link state, “She was well aware of what she wanted to do.” 

The jury’s verdict regarding Ms. Link’s testamentary capacity is therefore supported by 

material evidence.

The jury found that Ms. Link had the requisite testamentary intent to dispose of 

her property in the manner set forth by her 1998 will. In assessing testamentary intent, “it 

is immaterial whether a testator necessarily understands that by executing a particular 

document he is making a will, so long as the document demonstrates it was his clear 

intention to dispose of his property after his death.” In re Estate of Blackburn, 253 

S.W.3d at 615 (quoting In re Meade, 156 S.W.3d 841, 843-44 (Tenn. Ct. App. 2004)). 

The circumstances surrounding the testator’s execution of the document do not indicate 

testamentary intent. Id. Rather, testamentary intent must be determined “from what the 

testator has written and not from what it is supposed he intended.” Id. (citations omitted). 

Ms. Link’s 1998 will is titled, “LAST WILL AND TESTAMENT OF GERTRUDE B. 

LINK.” In pertinent part, it states, “I do hereby make the following devise . . . To the 

First Baptist Church of Jasper, Tennessee, the sum of [$10,000] . . . I do hereby give, 

devise and bequeath all of the rest, residue and remainder of my estate . . . to my nephew, 

James Clifford Layne.” That language reflects a clear intention to dispose of Ms. Link’s 

property after her death. The jury’s verdict regarding Ms. Link’s testamentary intent is 

therefore supported by material evidence. 

The jury also found that Ms. Link’s 1998 will was not forged and was not the 

product of undue influence or fraud. A will executed in compliance with all of the 

formalities of law is presumed to be valid and free from undue influence or fraud. See In 

re Estate of Eden, 99 S.W.3d at 88. Here, Mr. Layne presented evidence that Ms. Link’s 

1998 will was executed in compliance with all of the requisite legal formalities. Ms. 

Kelly testified that Mr. Kelly was not available to testify in light of his declining health 

but identified his signature on the will as a subscribing witness. Ms. Steele identified her 

signature on the will as a subscribing witness. Ms. Murphy identified her signature on 

the attached affidavit as the notary. Ms. Kelly, Ms. Steele, and Ms. Murphy each 

testified regarding Mr. Kelly’s procedures when drafting a will for a client. They each 

explained that Mr. Kelly always met with the client first, alone in his office, to discuss 

the client’s intentions. Mr. Kelly’s handwritten notes reflect that he met with Ms. Kelly 

alone on March 5, 1998, several days before she executed the 1998 will, and that she was 

“well aware of what she wanted to do.” The 1998 will clearly and conspicuously sets 

forth the manner in which Ms. Link intended to dispose of her property after her death 

and does not bear any evidence of alteration on its face. The jury’s verdict upholding the 

validity of Ms. Link’s 1998 will is therefore supported by material evidence. 
- 33 -

V. CONCLUSION

After careful review, we affirm the trial court’s judgment and remand this case to 

the trial court for any further proceedings that may be necessary and consistent with this 

Opinion. The costs of this appeal are taxed to the appellants, Carlynn Newcom, Don 

Durham, and Reed Durham, and their sureties, for which execution may issue if 

necessary. 

_________________________________

ARNOLD B. GOLDIN, JUDGE