### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 13, 2000 Session
IN THE MATTER OF

THE ESTATE OF S. W. BRINDLEY, DECEASED Direct Appeal from the Circuit Court for Giles County No. 9944 Stella L. Hargrove, Judge

No. M1999-02224-COA-R3-CV - Filed August 7, 2002

This is a will contest between two siblings. After the onset of the pa

rties’ f ather’ s final illn

ess, during which his competence was questioned and eventually a c onservator appointed, the father executed a codicil to his will that materially altered the distribution of his estate in favor of his son, the appellant herein. The testator’s daughter challenged the validity of the codicil in the underlying action. After the jury fo u nd that the codicil was not the testator’s “own free ac t,” but was instead the result of undu e influence on the son’s part, the codicil was declared a nullity. We a ffirm the jury’s ve rdict. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded
P ATRIC IA J. C OTTRELL , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined.
Thomas W. Hardin, Kim

B. Kettering, Columbia, Tennessee, for the appellant, Robert Brindley, Sr. Robert C. Henry, William Stuart Fleming, Columbia, Tennessee, for the appellee, Linda Brindley Dale.
OPINION
This is a will conte st betwee

n two siblin gs, Robert Brindley, Sr., and Linda Brindley Dale, over a codicil executed by their fa ther, S.W . Brindley

(“the te stator”) , at a time

when his competence had been que stioned a

nd after a conse rvator ship proc eeding ha d been ini

tiated. T he codic il materially altered the distribution of his estate, as established in prior testamen tary documents, in favor of his son. In the underlying action, the testator’s daughter , Linda Da le, challenged th

e validity of the codicil. Although the jury found that the testator had been of sound mind on the date he executed the disputed codicil, it also found that the codicil was not the testator’s “own free a ct,” but-2-

was instead the result of undue influence by the son, Robert Brindley. The codicil was declared a nullity.
Mr. Brindley has appealed and argues: (1) the trial cour t should have granted his motion for directed verdict , made at

the close of the pr oof, on the

issue of u

ndue infl uence; ( 2) the ve

rdict is against the weight of the evidence on the i ssue of undue influenc e, and the

trial cou rt faile d to exerci se its duty as the t hir teenth ju ror in ap proving th

e verdict; and (3) the jury w as improp erly instructed as to undue influence.
I. Standard of Review
Our standard of review of a jury’s factual findings in a civil action is limited to determining whether any material evidence supported the verdict. Tenn. R. A pp. P. 13(d

). The a ppellate courts do not determine the credi bility of witnes ses or we igh evide nce on a ppeal fr om a jury v erdict. Conatser v. Clarksville Coca Cola Bottling Co. , 920 S. W.2d 646, 647 ( Tenn. 199 5); Benson v. Tennessee Valley Elec. Coop. , 868 S.W.2d 630, 638-39 (Tenn. Ct. App. 1993). Where the record conta ins materi al evidence supporting the verdict, the judgment based on that verdict will not be disturbed on appeal. Reynolds v. Ozark Motor Lines, Inc. , 887 S.W.2d 822, 823 (Tenn. 1994).
In reviewing the den

ial of a mo tion for d

irected verdict , this cour

t m usttake the

stronges t legitimate view of the evidence in the light most favorable to the non-movan t, and all evidence contrary to that view must be discarded. State Farm Gen. Ins. Co. v. Wood , 1 S.W.3d 6 58, 66 2 (Tenn. Ct. App. 1999). A directed verdict is not appr

opriate when the re are materia l disputed facts or when there is disagreement regarding the c on clusions that could be drawn from the evidence presented. Mitchell

v. Smith , 779 S.W.2d 384, 387 (Tenn. Ct. App. 1989). Viewing the evidence in accor dance w ith those p

rinciple s:
A directe d verdic t is appr opriate only when the evidence is susceptible to but one conclusion. . . . A s this Court has stated, “The court may grant the motion only if, after assessing the evidence

accord ing to the foreg oing sta

ndards, it determines that reasona ble minds c ould no t differ as to the conclusions to be drawn from the evidence.”
Alexander v. Armentrout , 24 S.W.3d 267, 271 (Tenn. 2000) (citations omitted).
In Alexander , our Supreme Court discussed the interplay between the standard of review for directed verdict and the material evidence rule. In that ca se, the Court determined that the court of appeals had correctly stated the applicable standard of review for a

motion for directed verdict, as set out above, but had misapplied the standard when evaluating the evidence. Alexander , 24 S.W.2d at 271. Th e error on the part of the intermediate c ourt was engaging in a de novo review of t h e evidence “in that it

a ppears to have disregarded the jury’s findings and to have reeva luated the evidence in its entirety.” Id .; see also W illiams v . Bro wn , 860 S.W.2d 854, 857 (Tenn. 1993) (holding that on re

view of th

e grant o f a dire cted ver

dict, it is not the office of an app ellate c ourt to1 Several years aft er this will was executed in Sept ember of 1984, Robert Brindley purchas ed thi s fa rm from his father, and resold it at a profit two m onths later. -3- weigh the evidence). In Alexander , the Supre me Court then proce

eded to examine the sufficiency of the evidence in the record to support the jury’s specific factual findings, reflected in a specia l verdict form, and found, under the “no material evidence rule,” that there was evidence to support those findings. Alexander , 24 S.W.2d at 271-72. Those findings of fact determined the legal issues involved, and the Court affirmed the trial court’s denial of directed verdict. Id . at 274.
In accord with this guidance, our first task is to determine whether there is material evidence in the rec ord to supp ort the jur y’s findings. If the

re is mate

rial ev idence to support the jury’s find ings, then, of necessity , grantin g a directed verd ict for th e losing pa

rty would

have bee n improper because the evidence permitted reasonable minds to reach a conclusion different from that asserted by t he losing party. The special verdict form in the record be fore us indicates that when asked“Was the execution of the Final Codicil by S.W. Brindley his own free act and will and not the result of undue influence of Mr. Brindley?” the jury answe red “No.” Robert Brindley’s argument herein is that the evidence is no t sufficient to establish the requisite legal elements of “undue influence.” We begin with the evidence pr esented at trial.
II. The Evidence Although he had little formal schooling, the testator succe ssfully built up a number of bu sin esses. According to his initial will, which he jointly and separately executed with his wife, Edna Brindley, in February of 1976, the testator owned a lumber yard, a service station, a sheet metal shop, a coal ya

rd, a fa rm, and twelve pieces of rental property. He also owned a trucking c ompany and a constr

uction bus iness, wh

ich he tr ansfer red to his son, Robert Brindley, Sr., long before the events in question.
The initial will provided that all real and personal property of the testator, S.W. Brindley, and his wife, Edna Brindley, would pas s to the survivor. At the survivor’s death, the lumber yard and the real property on which the service station, sheet metal shop , and coal yard were located we re bequeathed

to LindaDale. The farm

was left to Robert Brindley, Sr., 1 and the siblings were to share equally in the twelve piec es of re ntal prop erty and

a home loc ated on Ma

dison Stre et in Pulas ki, Tennessee. T he will provided that any future property the testators acquire d was to be shar e d equally betwee n the siblin gs, includ

ing all stoc

ks, bonds, and bank

accoun ts. Lind a Dale was appointed to serve as executrix without bond, and in the event of her death, the President of Union Bank was designated to serve in her place.
Linda Dale began working at her father ’s lumber

yard in the late 19 50’s while in high schoo l, a nd w orked the

re conti nuously since that time. Her h usband, T erry Da

le, bega n working

there in 1961. In late 1979, Linda Dale, her parents and her h usband executed a partnership agree ment2 Although t his document i s t it led “ Codici l No. 1, ” it is act uall y the s econd codi cil to t he Februa ry 10, 1976, will. -4- relating to the lumber yard, transferring 49% of the business to the Dales. Linda Dale testified that her father had assured her that she and her husband would eventually own the lumber yard.
Robert Brindley also worked at the lumber yard for a few years after

he left high school. He then started a construction company, which he still operated at the time of trial he rein. Initially, he purchased

the busine ss from hisfather . Ro bert Brind ley described this transaction as simply the purchase of some tools, and the license went with the purchase

. In June of 1980, S.W. Brindley and Edna Brindley executed a codicil to their will. T he codicil reiterated that they wished Li nda Dale to be thei r execu trix. How ever, it

stipulated that if she predeceased her pare

nts, her brother, Robert Brindley, was to serve as exec utor.
Several years later, the testator began experiencing heart problems. In July 1983, he suffered several heart attacks and underwent open heart surgery. He enjoyed a full recovery from the surgery and was able to continue his businesses, care for himself, and dr ive.
In February of 1984, the testator andhis wife executed a power of attorney to Linda Dale. At some unspecified time in 1984, the testator’s wife, Mrs. Brindley, broke her hip. During surgery on her hip, she suffered a stroke which left her unable to speak. After her hospitalization and a brief period in a nursing home, the testator brought her home, where she received round-the-clock ca re.
After his wife suffered the stroke, the testat or executeda second

codicil to

the will. 2 This codicil, dated February 13, 1985, reaffirmed the t es tator’s intent to bequeath all his interest in the lumber yard toLinda Dale and specifically defined the scope of the interests in the business he intended to convey. It stated:
Wherea s, by Item IV

of my Last

Will and Testament dated the 20th day of February, 1976, in the

first sentence thereof, I devised and beque athed to my daughter, Linda Brindley Dale, the lumber yard property. It was then and is now my intent and I do hereby devise andbequea th to my daughter, Linda Brindley Dale, the entire lumber yardproperty whichshall include not only the real estate and all appurtenance s and fixtures affix ed thereto but it shall also include my interest in the business known then as S.W. Brindley and Son Coal and Lumber Company and now known as S.W. Brindley and Dale Coal and Lumber Company and all assets associated ther ewith.
On March 30 , 1987, the

testator execute d a third c odicil to hi s will. This codicil ma de a specific devise of a piece of real pro perty and re sidence to John Coleman, one of the testator’s employee s. It also stated, “In all other respects, I here by reaffirm my Last Will and Testament dated February 10, 1976.”-5-

In Septem

ber of 19 88, the te stator’sheart pr oblems wor sened and his docto rs advise d him to have a s econd surgery, which he underwent on September 28, 1988. It wa s after this second surgery that a number of circumstances cha nged. According to Linda Dale, the testator was “very confused” after the surgery. While in the critical care unit after the surgery, he became convinced that he w as going ho me and would roll up the mattress cover and refuse to stay in bed. Once he was moved into a room, he appear ed to believe that he was riding on a train through Alabama and Missouri. He also attempted to run away and was discovered

barefoot in his pajamas wal king out the front door of the hospital. Linda Dale hired private sitters to stay with her fat her until h is dischar ge. Afte r two wee ks in the ho spital, Linda Dale brought her father home. She found him very c onfused a

nd at timesviolent, although she had not known him to be violent in the past.
After consulting testator’s cardiologist, Linda Dale the n took her father to a psych

iatrist, Dr. Trea dway. Dr. Tre adway a dmitted the

testator to the men

tal ward at St. Thoma s Hospita

l i n Nashville on December 29, 1988. The testator was discharged on January 19, 1989, and returned home. However, according to Linda Dale he was actually worse.
He would slap at you, and he would runoutthe door, and he would -- he kept saying, you know, he wasn’t at home. He’d like to go to his [home]. . . He dema nded Ms. Kelly, Clara Ke

ll y, who wa s s itting with Mother at the time, and he told her, you know, h e didn’t k

now who sh

e was an d ordere d her to le ave. And he kept te

lli n g Mother to get up a

nd fixhis dinner. And, of course, Mother was an invalid by then and wasn’t e

ven able to sit up, a

nd he didn ’t reali ze that. And he spoke about things we didn’t understand

. . . he thou ght that Mo ther wason a hill, a nd he wasgoing to hire a helicopter to come and get hi m a nd Mother and take them home. And he talked about his p istols, and he talke d about using that p istol on h imself. And he wantedto know if he put th e pistol in o ne ear a

nd he pulle d the trigg er, woul d it kill him or would it just come out the other side.
Linda Dale ha d her fa ther re admitted t

o St. Thomas Hospital on January 21, 1989, where he remained until February 13, 1989. During this admission, LindaDale arranged for her mother to be placed in anursing ho me. After her father’s discharge from St. Thomas, he was placed in the nursing home as well, in the room ne xt to his wif

e. Linda Dale continue d to employ

sitters to remain withher mother around the clock. Linda Dale testified that her father got to the point wher e somebody had to stay in the room with him or he required restraint to prevent him injuring himself.
A. The Con servato

rship
On October 25, 1989, Linda Dale petitioned for appointment of a conservator for her f ather. In that petition, she alleged that her father , the testa

tor here in, was a nd had be en for a

lmost one yea r incapab le of managing his estate. She attache d letters from her father’s phy sicians, Dr. Haney a nd Dr. Grossman, both dated December 1988, stating that the testa tor was incompete

nt to manage

his-6-

affair s. The December 9, 1988, letter from the testator’s cardiologist, Laurence Grossman, M.D., stated:
Mr. Brindley h as been q uite ill in the pa st. He has coronary heart disease, a dvanced. He is diabetic and has cerebrovascular disea se. H e has many periods of confusion and disorientation. Mr. Brindley is incapable at this time o f mana ging his own affairs, both financial and otherwise.
The December 12, 1988, letter by C.D. Haney, M.D., the testator’s longtime physician, stated: Mr. Brindley is an 80-year-old, white male that has had some very serious medical problems i n cluding diabetes mellitis, severe coronary artery disea se and atheros clerotic

cerebralvascula

r diseas e. He ha s recen

tly becom e confuse d at times, forgetf ul, disoriented and his jud gment ha s been imp aired to the point th at he is
u nable to handle his own affairs in a reasonable manner . It is my opinion that th e courts should appoint someone to watch after Mr. Brindley’s affairs, both financial and otherwise.
Also attache d t o the petition were affidavits from Dr. Grossman and Dr. T readway , the psy chiatris ts who had treated the testator, in the form of certificates of examination, dated October 1989 , that attested that the testator was cur rently un able to

manage his affairs “by reason of suff ering from a physical incapacity or mental weakness.”
The petition also allegedthat L inda Dale had l earn

ed th at “o n Sept

embe r 26, 1989, S.W. Br in dl ey, during his incompetency , revoked a valid general powe r of attorney

granted to the Petitioner [Linda Dale]” and that

the testa tor had si gned a

power of attorne y ma king his son, Robert Brindle y, h is attorne y in fact. Th e petition further allege d that:
Robert Brindley ha s attempted to use the invalid power of attorney to gain ac cess to the business records of S.W. Brindley and Da le, a partnership which is owned 51% by S.W . Brindley a

nd wife, Edna Brindley

and 49% by L

inda Brindley

Dal e an d husband Te rr y Da le . R ob er t B ri nd le y k nows or should know that his power of attorney is invalid and has malic iously used said invalid power of attorney to interfere with the partnership business of the Petitioner and S.W. Brindley

. The par tnership will suffer irreparable harm unl ess Rober t Brindley is re strained from using the in va li d p ow er of

at to rn ey.
A guardian ad litem was appointed who answered t he petition by deny ing that the testator was incompetent and deny ing the need for t

he appoin

tme nt of a conservator. I n the answer, the guardian ad litem responded to the ab ove-quo te d allegation by admitting that the testator had revoked the previously existing power of attorney which ma

de Linda Dale his attorney in fact and, about the same time, executed a power of attorney “for his son, Robert Brindley .” The guardian ad3 When questioned abou t the motion to dismiss, Robert Brindley testifi ed, “My dad wa sn’t in th at pet it io n. ” He also state d the mo tion w as filed by a n atto rney “that I h ired to file on his [the testator’ s] beh alf.” -7- litem fu rt he r a dm it te d “ Ro be rt Br in dl ey, at the request of Mr. S.W. Brindley , and acting through the Power of Attorney , requested an audit of business records of Br indley and Dale

. . . .”
Robert Brindle y op posed the conserv atorship

and late r testified that he s pent around $40,000 to $50,000 in attorney’s fees contesting the petition, “fighting” to keep his father fr om being declared incompet ent. He testified that his father did not want to be dec lared in compete

nt and tha t he, Robe rt, didnot believe that his father was incompetent to h andle his affairs at that time. As part of the effortsto oppose t

he conse rvators hip, Rober

t Brindle y, Sr ., to ok his fathe r to another doctor, Dr. Wells, a neurolog ist-psych iatrist , for an examination.
Dr. Wells examined the testator on November 27, 1989. He t alked fo r over a n hour with

the testator and briefly with Mr. Brindley before examining the testator. Dr. Wells concluded that there was no evidence of serious impairment of the testator’s memory or other cognitive functions. The doctor felt there was no reason why the testa tor was not compete

nt to mana

ge his own life a

nd his business a

ffairs.
Ther eafter, a mo tion to dismiss the petition for conservatorship was also filed by te stator, “individu ally

and through his power of attorney , Robert Brindley .” 3 The motio n as serted that no conservator

was nec essary

because the testa tor was c apable o f managing his affair s. The moti on also stated that testa

tor had on Novembe

r 27, 1989 , visited D r. Wells for an examination of his cognitive functions and mental capacity . The results of that examination were set forth in a filed deposition. The motion also

asserted that R obert Brindle y ta lked with t

estator o n a daily

basis and found him capable of manag ing his own affai

rs.
Su bs eq ue nt ly, the parties agreed to an independe nt psychologica

l examination, and the court entered an agreed order a

ppointing Dr. Pamela Auble to conduct “an independ

ent ger iatric physiological

test” and make her findings available to counsel. That examination was ordered to be held April11 , 1990, and was so held. The date is significant beca use of its proximity to the execution of the codicil at issue herein. At trial, D r. Auble testifie d that in

her opinion, the testator was not able to manage his affairs on April 11, 1990. She also testified that a person who suffered from his problems would be easily manipulated.
The testing revealed “mild intellectual impairment with more

moderat e compro mise in new learning and mental flexibility.” His verbal IQ fell near the bottom of borderline re tarded for his age. For example, despite what the doctor characte rized as a “go od effort,” t he testator could not remember

two sente

nces af ter five minutes. H e could

not reca ll the yea r of his birth or the name of t he vice president. Nor could he remember the a ges of his children or the number or sex o f hi s grandchildren. Dr. Auble stated that she predicted

that his intelligence previously had been in the high average to superior range.4 Dr. Wells exam ined the testator again i n Decem ber 1 990 and determined that it was appropriate for a

conservator to be appointed for hi m at that t ime. -8- The conservatorship proceeding was f inally resolved by

entry of a

n order on February

8, 1991, reflecting that all parties ag reed that the testator

was, at th at time, in

need of a conserv ator to manage his affai rs and that he was incompetent to do so himself. 4 The court appointed Philip K. Baddour, a certified public accountant, as the conser vator. The cons ervator

continue d to draw 51% of the profits from the lumber yard for the testator’s benef it. The con servato r file d an annual accounting with the court until the testator’s death in 1998. The final agreed order

in the conservatorship proceeding also stated: The Restraining Order

heretofore issued on

October 26, 1989, i n this cau se aga inst Robert Brindley be

and the same is he

reby dissolved , the res trictions imposed in said Order agains t all part

ies name d therei n are lifted, and the obligat ions of L inda Dale and Ter ry Dale as p rincipa l and sure ty o n the bond

are disc harge d in full.
The record before us does not include a copy of the referenced

restrai ning order, but the original peti tion request

ed that a restraining ord

er be iss ued ag ainst Robe

rt Brind ley “prohibiting him from using the power of attorney given to him by

S.W. Brindley in any

manner and

specifically f

rom gaining acc ess to

the f inan cial reco rds o f S.W. Brindley, individually or as partner of S.W. Brindley and Dale until a hearing in this cause.”
At trial, Robert Brindley explained that he eventually agreed to the con servato

rship bec ause he concluded that

if the parties selected the right conservator his father’s affairs w ould be managed well, that his fa

ther had sufficie nt resour ces to ta ke care of his nee ds, and be cause Robert was at that point unable to continue to spend money fighting the conservatorship. “I went back to Da d and told him that nothing was going to change, we weren’t going to be putting him out, wasn’t going to put him away or anything to that extent.” B. October 1989 through April 1990
Wh ile the testator was living in the nursing home, Mr. Wayne Baker was hired in 198 9 t o sit with him. Mr. Baker’s wife previously cared for the testator’s wife for some time. Although the parties appare

ntly dispute

who actu ally hire d Mr. Bake r, Mr. Bak

er testif ied t hat it was Robert Brindley who asked him to care for his father. Mr. Baker described the testator’s condition when he first sta

rted sitting with him. H e stated that the te stator’scondition deterio rated du ring the f irst three or four months to the point where he was unable to feed himself, shower himself, get in bed by himself, or get around by himself.-9-

Mr. Baker further

testified that the testator’s condition improved after his medications were gradually a dju sted and eventually he wanted to go home. According to Mr. Baker , the testator believed that Linda Dale would not allow that. Mr. Baker helped the testator contact his attorney, HowellForr ester, who assisted the testator in changing his power of attorney to Robert Brindl ey
. Sometime

after this change, Mr. Baker and the testator a t tempted to leave the nursing home, but Linda Dale and her daughter(s) talked the testa tor into staying. Mr. Baker also stated that the testator stayed in part be cause he

“really didn’t wa

nt to leave” his wife, who was still in the nursing home.
On January 31, 1990, while the petition for appointment of a conservator wa s pending, the testator checked himself out of the nursing home. He moved back t o his hom e with Mr. Baker. When the testator

returned home, Mr. Baker lived with him full-time. According to Linda Dale, at that point: Daddy was able to feed himself. He wasn’t able to dress himself, bathe himself. He had to have help. He was confused most of the time, youknow, that he was going to be late for work or

he was going to be laid off or be left, or he was afra id that he wasn’t at home. He wanted to be sure and gohome. And he thought that he wasn’t at his home, of course, and he wanted to pack a lot, and put all his belonging s together because whoever owned the

home was going to make him move. He was just confused. . . . He visited Mother four or five times a day, I guess. Basically, we would take him over there, but like I say, he wouldn ’t stay bu t a minute. . . he would never sit down. H e would gi ve Mother something

to drink. Mo st of the time he brought her bananas, and she got tired of ba nanas. . . . He wouldn’t sit down. He would just say a word or two, and then he’d leave.
The record shows that

for a time the testator was fairly active afte r he returned home. Mr. Baker testified that the testator visited his wife at least twice a day, ate most of his meals in local restaurants, began attending Lion’s Club meetings and church. According to Mr. Baker, by 1990, the testator was able to bathe, dress, and shave himself.
Linda Dale’s daughter, Bre nda Davis, testified that she visited her grandfather daily from Februar y to August

of 1990. Sh

e reca lled that:
He was disoriented, confused. He didn’t know relative fa cts about current event s
. He was just -- he was like a child, in a way. I guess that would be the best way for me to tell you how he wa s. He wasnot the gr andfath er that h ad raise d me, in his mental capacity, but he was still my grandfather that I loved.
Linda Dale als o visited he

r fathe r almost every day in the months after the testator left the nursing home, a lthough she realized that her

father was upse t with her because she had w anted to keep him in the nursing home.-10-

Linda Dale t estified that Mr. Baker took the testator to visit Robert Brindley, “but Robert didn’tcome by very often to see [ his father].” Both Mr. Baker and Robert Brindley also testified that Mr. Baker would often take the testator to see Robert at his office. According to Mr. Baker, the testator often stated he wanted to talk to Robert about some particular matter

. According to Robert

Brindley, the person who really took care of the day- to-day needs of his mother and father was Linda Dale, who saw them every day, made sure their needs were met, e tc. Mr. Brindley testified that he went to see his father “a whole lot” while he was in the nursing home. However, he admitted that initia lly he didn ’t reali ze his fa ther had been put in the nurs ing home because he had be en out of t

own. He a

lso testif ied that f rom 1985 to

1992, “I would see

him , I would imagine, once a month would be about it, or maybe twice a month for a period of time. In the latter ye ars [unt

il the test ator’s d eath in 19 98] I saw

him less frequen tly.” Although Robert Brindley testifie d he visited his father once or twice a month during the releva nt time per

iod, he al so acknowledged that his father would frequently drop by his offic e.
Robert Brindley a

ccompan ied his father to the court-ordered exa mination by Dr. Auble on April11, 1990. Accord

ing to Mr. Br

indley, hi s father

was “ex tremely a ngry, ex tremely u pset” about the prospect of the examination. Dr. Auble’s tests showed, in addition to the results discussed above, that the te stator wa s modera tely depr essed. A ccordin g to the docto r’s rep ort, the testator reported that he was afraid of his children not getting along after his death and stated that he would be happier if “I could leave my will for my children evenly.”
Dr. Auble ’s repor

t stated th at:
withhis poor me

mory, Mr. Brindley w ould have great di fficulty

managing

day to day business transactions. He does appear to have a good gene ral grasp of his situation, butI do not think thathe can be counted on for accur ate recall of details. So far, the course of his disease does not resemble Alzheimer’s in tha t he has appare

ntly improved over the past year or so. It is possible that this was due to over-medication or something

of that na

ture last year, a nd that now

there wi ll start to b e a decl ine in functioning. Another

possibility

which couldcause this patternof deficits might be multi-infarct dementia. The report also stated: According to Mr. Brindley’s son [Robert], his sister and her husband have taken money from his father’s accounts at the lumbe

r busines s which S.W. Brindley owns jointly with his daughter. He said that was why Linda Dale wants Mr. Brindley declared incompet

ent. S.W. Brindley [the testator] told me that one man had been sold $370,000 w orth on cr

edit though he had n ot paid his bills in the past, and that mone y had bee

n taken ou

t of his sav

ings withou

t his knowle dge and put into th e lumber business. He said that money from his savings had been used for the lumber business before, but

that he had known about it in advance. Linda Dale repor ted that-11-

the lumber business does owe her father money, but that it was historically common to do this in that busines s and th at the de bts were record ed in the b ooks. She s aid that she had not stolen money from her father. Both Linda Dale and her daughter, Brenda, testified that the testator never read anything after his second surgery. The recor d shows that the testator’s sight had deteriorated, although he had bee n an avid r

eader b efore h

is illness. Mrs. Dale

also testi fied tha

t her fa ther wasunable to conduct any business after the 1988 surgery and hospitalization.
C. The Fina

l Codicil According to Mr. Ba

ker, in A pril o f 19 90, which would have been around the time of Dr. Auble’s examinatio n, the tes tator wa nted to go to the office of his lawy er, Mr. Forrester. The testator told Mr. Baker he was going to have h is will changed. Although Mr. Baker was present during the meeting between the testator and his attorney , he could not recall any

specific parts of the discussion. According to Mr. Baker, a fter the testator told Mr. Forrester how he wanted t he will written, Mr. Bak

er and th e testato r left.
A few days later

they returne d to the attorney’s of fice to pick up the will. Mr. Forrester went over the will with the testator. Although Mr. Baker did not know the specifics of the conversation, he testified that the testator did not express any dissatisfaction with the will at that point. They left with a copy of the will, and the testator wanted to go to Robert Brindley ’s office.
Mr. Baker and the testator went straig ht to Robert Brindley’s of fice from the lawyer’ s office. Mr. Baker

te stified , “Well, when we walked in and every thing, you know, he

told Robert that he wantedhim to read the will.” The testator handed the document to Robert Brindley , who read the will out loud to the testator. The testator then said, “No. That’s not how I want it.” According to Mr. Baker, he and the testator then retur ned immediately to the attorney ’s office, where the testator told the attorney how he wanted

the will written. Mr. Forrester replied that he would change the will and the testator could pick it up later. Several day s later Mr. Baker took the testator

to the atto

rney ’s offic e, Mr. Forreste r read t he will to th

e testato r, and the y e xecuted it. Mr . B ak er di d n ot re me mb er if th ey t he n t oo k a co py o f t he wi ll to Ro be rt Br in dl ey.
Mr. Forrester, the

at to rn ey, recalled that he w ent, at the testato r’s req uest, to the nursing

home for the first discussion about changing the will. Mr. F orrester was u nable to r ecall a ny s pecific events surrounding the execution , but was c ertain th at the sa me proce dure wa s followe d as with all other wills he dr

afted. H e identif

ied his signature a

nd that of his secret ary as witnes ses. He testified that the testator understood the codicil and understood that it would be effective only if his wife predeceased him, a condition which is reflecte d on the document itself.
Mr. Forrester did not mention the other visits to his office, as described by Mr. Baker, or the revision after th

e first draft. He did not testify tha t he gave any

advice to the testator. He stated that5 Although the document at iss ue is entitl ed codic il , i t re vokes al l pri or wil ls and codi cil s. We will conti nue

to refe r to it as a co dicil. -12- the kept the c odicil in hi s safe un til the tes tator’s d

eath and told Rober

t Brindle y a bout it at the testator ’s funer

al. He te stified th at Robert said he w ould tell hi s sister a bout it.
The testator

execute d the codi cil 5 at issue o n April 19, 1990. The parties do not dispute that it was duly e

xecuted . In addit

ion to making Linda Da

le and Rob ert Brind

ley co-e xecuto rs, t he document stated in p ertinen

t part:
I direct that my two (2) children, two-wit: Robert Brindley, Sr. and Linda Brindley Dale, share equally in any and all of my pr

operty. T his includ es bank a ccounts, my interest in the Brindley and Dale L umb er Compan y, my vehic les and a

ll of my propert y including

residen tial and r ental pr operty th at I might own, except as shown in the last paragraph of this item.
I direct that all the property that I might own will go to them equally and they can have a public a

uction, se ll this privately or divid

e it among

themselve s. If they can notagree then of course, the exec utor will have the ultimat e authority to sell and dispose of the property and divide the proceeds. Heretofore, I gave Linda Brindley Dale 49% of Brin dley and Dale Lumber Company. I want Robert Brindley, Sr. to have 50% of the busine ss. I t herefore give Robert Brindley, Sr. 50% and give Linda Brindley Dale 1%.
I want them to share the lumber c ompany eq ually and each of my children will have a 50% interest in Brindley and Dale Lumber Company.
Robert Brindley l ater tes tifie d, “ I had nothing to do with that will.” He claimed no recollection of the incident described by Mr. Baker when the testator br ought him the proposed codicil. He was unsure whether he rec eived a copy of the final codicil prior to his father’s dea th.
D. EventsAfter Ex ecution o f the Codic il
After reviewing her diary, Brenda Davis, recalled visiting her grandfather on April 19, 1990. According to Ms. Davis, her grandfather usually followed a predictable routine: Usually, it was, get up, Mr. Baker, he would have to get him ready and everything, and he would feed hi m, and t hen he loved to ride in the pickup when he was able. So Mr. Bake

r would ri de him

around, and he would bring him downto the off ice to visit my mother, and he wo uld visit us sometimes, like that, and then he would go riding around again, and they would go eat, then usually they went back home, you6 There were actual ly thre e codicil s prior to the 1990 one at i ssue. -13- know, in the af

ternoon. So he would

get out a w

hole, who le lot, but h

e would be

in and out like that. And he was, you know, just riding, usually.
On April 19, however, the testator was not home in the afternoon and Ms. Dav is went looking for

him at the nur sing home. Accord ing to Ms. Da

vis, when she fina lly caugh t up with him at home, she asked

him what he had been doing and he said he didn’t remember and denied going anywhere that afternoon. He appe ared agitated. The April 19 entry in Ms. Davis’s diary stated:
I went by the house to see Pawpaw, and Mr. Baker and him we re gone. And I went to the nursing home, andthe sitter said that he had been by, but that Robert and Mr. Baker had taken him somewhere.
I found out that they had went to see Mr. Forrester, but when I aske d Pawpaw, he didn’teven remember going to see Maw ma w or anything. He was confused, so I droppedit. Pawpaw said he had to go pick up Mawmaw by helicopter because they were on a hill, and it would take them to Pulaski which was 1,000 miles away.
Ms. Davis tes tified tha

t at no time

after April 19, did her grandfather appe ar “normal.” Nor didshe think that he could “fool” someone“in to thinking he knew w

hat he wa s talking a

bout” because he was unable to carr y on a conversation.
Mrs. Edna Brin dley died

in April of 1994. I

n that same

year, Mr . Baker a

lso stopped caring for the testator bec ause th e testator gradually started deteriorating, losing his memory, and sometimes needed

to be res tr a ined or quieted. After Mr. Baker stopped caring f or the testator, he began working at Robert Brindley’s construction company, where he worked f or a coup le of yea

rs. Mr. Baker

testified that he took snapshots and videotaped construction sites. He testified that, “If I wasn’t doing that, I was there in the office doing -- just running fans and doing genera l things there in the office. And I handled maintenance on the ve hicles.” In contrast, Robert Brindley testified:

. . . when Daddy had deteriorated a gre at deal, I gave Mr. Bak er a job to look after the tools and to check

tools out in the morning. It was a part-time job and such. And, yes, Mr. Baker worked

for me for a short period of time over a per iod of two or three years, I think, in checking out tools and such because I was always ver y grateful for the way he had took care of my father

. The testator

died on Jul

y 30, 1998. Linda Da

le did not s ee the A

pril 1990 codi cil until

it was mailed to her after his death. She filed the underlying petition for letters testamentary in which she requested that the will an d the firs t two 6 codicils be admitted into probate and that the court det ermine the validity of the final codicil. In September, Robert Brindley filed a petition fo r substitution of

executor, requesting the court appoint himself as executor , on the ground tha t he did-14-

notcontest th

e validity of the fin al codic il. The ca se was tr ansfer red to Circuit Court and tried to a jury.
At

trial, both parties testified at length. Linda Dale also offered, inter alia, the testimony of the testator’s psychiatrist at St. Thomas Hospital, Dr. Treadway, who testified that he spen t approximatelytwenty-five hours examining and treating the tes ta tor. His findings indicated the testator had substantial memory imp airment. The doctor testified that he was “absolutely certain” that the testator was suffering from dementia, “which mea ns permanent impairment of the b rain functions” with no cure “of any kind.” He testified:
I’m 100 % sure that

he had dementia. Can I be sure that he had Alzhe imer’s disease? No. It’s possible that there were strokes that didn’t show up on the x-rays. But I’m 90% sure that he had Alzheimer’s disease. That is as sure as you can be without an autopsy, which was not obtained in this case.
Dr. Auble testified that in her opinion, the testator was not able to manage his affairs on April 11, 1990. She also testified that a person who suffered from his p roblems w ould be ea sily manipulated. She stated:
In Mr. Brindl ey’s ca se especially, I think, because it was important for Mr. Brindley to appear that he had a grip on the situation. He wanted to look like he really knew what was go ing on and

sometimes that make s people - - it’s ea sier to ma nipula t e them because you can say to them, ‘As you remember,’ and, you know, they rea lly don’t remember, but they’ll say, ‘Oh yeah. Yeah. I remember.’ And so it would be. I can see how it would be easy to manipulate him because he really didn’t have muc h day-to-day memory. He really was trying to pass a lot where he had a good visage, a good appearance, that he wanted to appear that he knew what was going on and didn’twant to sa

y, ‘well, you know, in fact, I don’t have any idea what you’re talking about.’ He would just try to get along. Just like when I asked him the a g es of his children. I don’t think he knew, but he didn’t tell me he didn’t know. He just created some ages that maybe sounded reasonable.
Dr. Auble agreed that, “If you didn’t

k now Mr. Brindley, truly know him, and know the history of his life and his children and so on, . . . [he could] carry on a conversation that would fool you in to thinking

he did kno w what he

was talki ng about”but only “i f you didn’ t drillhim. Yo u know, like if you saw him in Kroger’s.”
Robert Brindley introduced the testimony of Stacy Garner , his fat her’s dentist and friend. Dr. Garner

testifie d that dur

ing a dent

al appoin tment in Ap

ril 1990, t

he testa tor was competent

. However, Dr. Gar

ner coul d not remember what they discussed and did not observe the testator either reading or writing.-15-

Mr. Brindle y also o ffered the deposition testimony of Dr. Wells, who had examined the testator on November

27, 19 89, as part of the testator’s and Robert Brindley’s efforts to fight the appointment

of a cons e rvat or. At that time, Dr. Wells concluded that there was no evidenc e of serious impairment in his memor y or other c ognitive functions. Dr. Wells examined the testator again on April 26, 1990, just days aft erthe final codicil was executed, and his opinion had not changed. Dr. Wells testified that Robert Brindley was directly involved in having him evaluate the testator. Dr. Well s admitted that after examining the testator in December 1990, he determined that it was app

ropriate for a conservat

or to be a ppointed f

or him.
III. Undue Influence
Mr. Brindley argues that the trial court erred in denying his motion for directed verdict on the issue of undue influence. He maintains that LindaDale failed to satisfy her burden of providing either direct or circumstantial evidence of undue influencewhich, he contends, consists of proving boththe existence of a confidential relationship between him and the testator and ad ditional suspicious circumstances that justify inv alidating

the will or

codicil. He asse

rts there was no proof that he enjoyed a “confidential relationship,” as that term is defined in the law of undue influence, with his father.
Undue influence “upon a testator consists in substituting the will of the pers on exerc ising it forthat of

the testator.” 1 J ACK W. R OBINSON , S R
. & J EFF M OBLEY , P RITCHARD ON THE L A W O F W ILLS AND THE A DMINISTRATION OF E STATES § 124, at 203 (5th ed. 1994) . The essential issue on a question of undue influence is whether “the will is the will of the testator or that of another.” Id. at § 130, at 210. A valid will is the product of the free exercise of independent judgment by a person who has the mental capacity to make a testamentary disposition. In re Estate of Elam , 738 S.W.2d 169, 171 (Tenn. 1987). Thus, undue influence exists where the free agency of a testator is destroye d to t he extent that the will, though nominally the testator’s own, is in reality that of anothe r
. Taliaferro

v. Green , 622 S.W.2d 829, 837 (Tenn. Ct. App. 1981), overru led on other grounds by Matlock v. Simpson , 902 S.W.2d 384, 386 (Tenn. 1995).
As a gener

al rule, it is presumed that undue influence does not enter into the making of a will, or other conveyance, and the burden of proving undue influence falls upon the person conte sting the document

. Hammond v. Union Planters Nat’l Bank , 189 Tenn. 93, 109, 222 S.W.2d 217, 383-84 (1949). Thus, pro of of due executi on shifts th

e burden of going f

orward to the contestants to prove that the testator was unduly influenced in making his or her will. In re Estate of Elam , 738 S.W.2d at 173; Owen v. Stanley , 739 S.W.2d 782, 787 (Tenn. Ct. App. 1987), overruled on other grounds by Matlock , 902 S.W.2d at 386 n.10.
Parties opposing a

will may c arry the

ir burde n of proving that the

testator was undul

y influenced

by p roving the existence of su spicious c ircumsta nces wa rranting a conclu sion that th

e will was not the testator’s free and independent act. Mitchell v. Smith , 779 S.W.2 d 384, 388 (Tenn. Ct. App. 1989 ); Taliaferro , 622 S.W.2d at 835-36.-16-

While undue influence can be proved either by direct or circumstantial evidence, see In re Deprie st’s Estate , 733 S.W.2d 74, 78 (Te

nn. Ct. App. 1986) (direct evidence); Patton v. Allison , 26 Tenn. (7 Humph.) 320, 333 (1846) (circumstantial evidence), direct evidence is rarely availa ble. Hager v. Hager , 17 Tenn. App. 143, 161, 66 S.W.2d 250, 260 ( 1933). Th us, in most c ases, those

attacking a conve

yance o r will on the grounds of undu e in fluen ce must prove the existence of suspicious circumstances warranting the conclusion that the person alleged ly influen ced did not act freely and independently.
Fell v. Rambo , 36 S.W.3d 837, 847 (Tenn. Ct. App. 2000) (citations omitted ). Without direct evidence of undue influence, persons contesting a will must prove the existence of more than one suspicious circumstance in order to succeed. Halle v. S ummerfie ld , 199 Tenn. 444, 455, 287 S.W.2d 57, 61 (1956).
Whether the circumstances relied upon by the party contesting the will are suf ficient t o invalida te the will sh ould be de cided “b y applica tion of sou

nd princi ples and g ood sense

to the fac ts of each case.” Halle , 199 Tenn. at 454, 287 S.W.2d at 61. The range of facts which may be relevant to the question of whether suspicious circumstances exist is very broad.
It is generally held that upon such issues every fact and circumstance, no matter how littleits proba

tive valu e, which

throws light upon the se issues , is admissi ble. Th e ran ge of inquiry may cover, not only the provisions of the will itself, and t h e circumstances surrounding its execution, but also the men tal condition of the testator, the motive an d opportun ity of oth ers to inf

luence h im unduly, h

is relati ons with persons benefitted by or excluded from the will, and the acts and declarations of such persons. Although n one of the se matter s standing alone ma

y be suff icient to establish the issues, yet taken together they may have that effe ct.
Mitchell , 779 S.W.2d at

388 (quoting Hager v. Hager , 17 Tenn. App. 143, 161, 66 S.W.2d 250, 260 (1933)). Thus, whether suspicious circumstances exist is a highly fact-specific question.
The suspicious circumstances often relied upon to establish undue influence ar e: (1 ) the existence of a confidential relationship between the testator and the be nefi ciary; ( 2) the testator’s physical or mental deterioration; and (3) the beneficiary’sactive in volvemen t in procu ring the w ill. In re Estate of Elam , 738 S.W.2 d at 173; Kelly v. Allen , 558 S.W. 2d 845, 848 (Tenn. 1977); Mitchell , 779 S.W.2d at 388, Taliaferro , 622 S.W.2d at 835-36. Our courts have recognized other suspicious circumstances giving rise to undue influence. These include: (1) secrecy concerning the will’s existence; (2) the testator’s advanced age; (3) the lack of independent advice in preparing the will; (4) t he testa tor’s illit eracy o r blindne ss; (5) the unjust or unnatural nature of the will’sterms; (6) the testator being in an emotionally distraught state; (7) discrepancies betwee n the will and the testator’s express ed intent ions; and ( 8) frau d or dure ss directed toward the testator. Halle , 199 Tenn. at 454-57, 2 87 S.W.2d a

t 61-62; Mitchell , 779 S.W.2d at 671. Although more than one circumstance must be prese nt, “[t]h e courts have refraine d from pr esc ri bing the type or number of suspicious-17-

circumstances that will warrant invalidating a will on the grounds of undue influence.” Mitchell , 779 S.W.2d at 388.

A. Confidential Relationships and Suspicious Circumstances
M r. Brindley argues that the only way to establish undue influence is with proof of a confidential relation ship in addition to at least one other suspicious circumstance. He furth er asse rts that there is no proof in the record of a confide ntial relationship between him and his father.
Our courts have stated tha

t the existence of a confidential relationship is one of the “suspicious circumstances” most frequently relied upon to show undue influence

. Fell , 36 S.W.3d at 847-48 ; see In re Estate of Elam , 738 S.W.2 d at 173; Kelly , 558 S.W.2 d at 848; Mitchell , 77 9 S.W.2d at 388; Taliaferro , 622 S.W.2d at 835-36.
A confide ntial rel ationship

is not mere

ly one of mutual trust and confidence, but one where confidence is placed b y one per son in anot her and t he reci pient of th at confi dence isthe dominant personality, withability, because of that confidence, to influence and exer cise dominion and control over the weaker or dominated party. Mitchell , 779 S .W.2d at 3 89; Iacome tti v. Frassinelli , 494 S.W.2d 496, 499 (Tenn. Ct. App. 1973). Confidential relationships may take a variety of forms, and the courts have not attempted to precisely define all relationships which may qualify. Robinson v. Robinson , 517 S.W.2d 202, 206 (Tenn. Ct. App. 1974).
A confide ntial rel ationship

may be found in a va

rietyof circumstances: “‘Although our courts ha ve not def

ined ver y clear ly the ele me nts which must be present for a confidential relation ship to exi st, it appears that any relation of confidence between persons which gives one domination over the other falls within the category.’”
Brown v. Weik, 725 S.W.2d 938, 945 (Tenn. Ct. App. 1983) (quoting Robinson , 517 S.W.2d at 206). Although courts have been hesitant to limit the types of relationships which might be found to be confi dential, Tennessee courts have recognize d two types of confidential relationships which differ in their c reation and in the

ir effe ct o n the burden of proof as to undue influence. A “lega l confidential relation ship” is one upon which the law imposes fiduciary responsi bilities or “prohibits gifts or dealing between the parties.” Matlock , 902 S.W.2d at 385-86 (quoting Kelly , 558 S.W.2d at 848). These fiduciary relationships are confide ntial per se because of the legal relationship of the parties. Examples include attorney and client, guardian and ward, and conservator and wa rd. Proof of the existence of a “legal confidential re lationship,” coupled with a transaction benef icial to the dominantparty, automatically gives rise to the presumption of invalidity of the transaction. Matlock , 902 S.W.2d at 385.-18-

An unrestricted power of a ttor ney cre ates a c onfident ial rela tionship be

tween the parties. Matlock , 902 S.W.2d at

386 (citing Mitchell , 779 S.W.2d at 384). This court has held that proof that a power of attorney was executed a fter the will and was not utilized for a number of y ear s after execu tion of the will was sufficient for the jury to conclude no per se confidential relations hi p existed and no undue influence was exercised. Crain v. Br own , 823 S.W.2 d 187, 194 (Tenn. Ct

. App. 1991), overruled on other grounds by Matlock , 902 S.W.2d at 386. Similarly, the Tennessee Supreme Court has recently clarified Matlock by holding that an unexercised power of attorney does notin and of itself create a confidential re lationship. Childress v. Currie , 74 S.W.3d 324, 329 (Tenn. 2002).
Linda

Dale argues that

Robert Brindley had a confidential relationship with their father once the testator e xecuted t he power of attorney to his son in September of 1989. On the other side, Robert Brindley argues that the power of attorney making him his father’s attorney in fact had been re voked as a matter of law by the appointment of a guardian ad litem at the be ginning of th e conserv atorship

proceedings. He asserts the guardian ad litem provided the t

estator with a weekl

y allowance and han dled the t est ator’s financial affairs. There fore, Mr. Brindley asserts, he had no control over the testator’s financial affair s at the time the codicil was signed.
The record

reflec ts that Robert

Brindley a

ttempted t

o exerc ise the po wer of a

ttorney a t least twice: (1) in requesting an audit or r ecords of the l umber yard business; and (2) in answering the petition for appointment of a conservator. We do not agree that the appointment of

the guardian ad litem to represent the tes tator’s interest in the conservatorship proceeding revoked the power of attorney as a matter

of law. Tenn. Code Ann. § 34-1-107 sets out the duties of a guardian ad litem and does not include the

duty or author ity t o assume c ontrol of

the asse ts or estate

of the person on whose behalf a conserv atorship

procee din g is brou ght. See also Tenn. Code Ann. § 34-6-104 (stating that a fiduciary including a conservator, char ged by the court

with the management of the principal’s property may revoke or amend a pr e-existing power of attorney). However, the evide

nce indic ates tha

t the guar dian ad litem, as a

matte r of fact, undertook handling of the testator’s financial affairs, at lea st for a while and to some extent. The guardian ad litem testified that he kept the checkbook, paid some bills, and gave the testator money weekly for living expenses. He later turned these duties over to the testator’s grandchildren because it was more economical for the testator. We note that the record a lso indicates that upon the filing of the petition, the court issued a restraining order that may have prohibited Robert

Brindley from using the power of attorney. There is no evidence that Robert Brindley attempted to use the power of attorney after the filing of t

he motion to

dismiss. In

this situat

ion, it may be true that as of April 1990, the power of attorney did not

create a confidential relationship per se because the lega l status of the part ies did not, at that time , creat

e a fiduc iary duty

upon Rober

t Brindley

in his acti ons towar

d the testa

to r
. Nonetheless, the power of attorney is relevant to the degree of control or influence Robert Brindley may have had

over his father

during thi s time per

iod as well as the de gree of confide nce rep osed in his son by the testator.-19-

That is becau se confi dential r elationsh ips are n ot lim it ed to those which ar

e offic ially sanctionedby law and impose responsibilities because of the legal status of the parties. The term also includes less well-defined relationships where one party re poses con fidence in another , and ac ts in reliance upon the other’s representations. Where, howe ver, the relationship arises from “family or other relationships,” proof of the ad ditional e lements of

dominion a

nd contro l is necessary to give riseto the presumption of und ue influence. Matlock , 902 S.W.2d at 385-86 (citing Kelly , 558 S.W.2d at 845); see also M itchell , 779 S.W.2d at 384. The mere relationship of a parent and child, without more, is not sufficient to prove a confidential relationship. Harper v. Watkins , 670 S.W.2d 611, 628 (Tenn. Ct. App. 1983) (citing Kelly , 558 S.W.2d at 847). In Kelly , the Ten nessee Su preme Court specifically held: [T]he normal relationship between a mentally c ompetent parent a nd an adult child is not per se

a confid ential re lationship and rais e s no presumpt

ion of the invalidity of a gift from one to the other. Kelly , 558 S.W.2d

at 848. Th

us, close familial relationships , unlike legal relationships, are not confidential per se. Whether a particular relationship constitutes a confi dential re lationship so as to create a presumption of invalidity of a transaction beneficial to the grantee must be answered by the evidence in a particular case.
In ord er fo r such a presumption to arise there must be a showing that there we re present the elements of do minion and control by the stronger over the weaker, or there must be a showing of senility or physical or mental deterioration of the donor or that fraud and duress was involved, or other co nditio ns which wou ld tend to establish that the free agency of the donor wa s destroyed and the w ill of the donee was substituted therefor.
In re Estate of El am , 7 38 S.W.2d at 173 (quoting Kelly , 558 S.W.2d at 848) (emphasis added). There must also

be a showing of some activity on the part of the beneficiary in connection with the preparationor execution of the will. Kelly , 558 S.W.2d at 847; Halle , 199 Tenn. at 445, 287 S.W.2d at 61. Despite

Mr. Brindley’s argumen

ts that no evidence was presented to establish the require d elementsof dominion and control, we find that there was material evidenc e f rom whic h the jury could have concluded that the testator had suff ered me ntal dete rioratio n, that the

testator had come to depend on Robert Brindley, that the testator was easily manipulated, and that Robert Brindley was involved in the change in the codicil which gave him 50% of the lumbe

r busines s, in contr

ast to all previouswills and c odicils. Where, however, the c ontestan t shows the

existenc e of suspi cious cir cumst ances suc h as a conf idential r elationsh ip in combin ation with

the beneficiary’s involveme nt in procuring the will, o

r in combin atio n with impairment of the testator’s mental capacity, there arises the presumption of fra ud or undue influence.-20-

Taliaferro , 622 S.W.2d

at 835-36 . The exi stence o f a conf identi al relationship, followed by a transaction where th e dominant party receives a benefit from the othe r party, gives rise to a presumption of undue influence. Matlock , 902 S.W.2d at 386.
Even without evidence of a confidential relationship between the te stator and the be neficiary, evidence of other suspicious circumstances create a jur y question on undue influence. Hamilton v. Morris , 67 S.W.3d 786 (Tenn. Ct. App. 2001) (citing Mitchell , 779 S.W.2d at 389-90). As stated earlier, whether the circumstances relied upon by the person challenging the document are sufficient to invalida

te it should be “ decided

by the app lication o f sound pr inciples a nd good se

nse to the fac ts of each case.” Halle , 199 Tenn. at 454, 287 S.W.2d at 61.
In this very fact-sp ecific inquiry, ta king the st

rongest legitimate view of the evidence in the light most favo

rable to the verdict, we find ther e was mat erial ev idence f rom which

the jury c ould have found that

the testator was unduly influenced. The testator was of the advanced ageof eightyone (81) whe

n the fina l codicil w as crea

ted. With out questi on, his mental faculties had deteriorated. La ter testimony indicated he was suffering from dementia. Both Linda Dale and he r daughte r testified regarding the deterioration in his mental acuity after his 1988 hospitalization. Six months prior to execution of the codicil at issue, a petition for conservatorship had been filed supported by medical opinions that the testator was incompetent to manage his affairs. Dr. Auble testified that the testator was particularly vulnerable to manipulation due to his lack of

day-to-day memory. Dr. Auble ex amined the testato r only day s before

the exec ution of the final c odicil.
In addition, there wa s testimony establishing Robert Brindley’s role in the revision of the codicil at issue. The jury could have decided and found significant that when the attorney read the document to the testator he voiced no objection, that immediately upon leaving the attorney’s office Mr. Baker

took the testator to Robert Brindley’s office, that when Robert Brindley read the document to the testator

he found it unacceptable, that Mr. Baker immediately returned the testator to the lawye

r’s offi ce, that

the testa tor appe ared ag itated and confused l ater in the day, and that Robert Br indley dis claimed a

ny recollection o f that inc ident.
The jury coul d have fo

und suspic ious circumstance s or indic ations tha t the codi cil was not the product

of the testator’s free will from a number of other facts including the relationship between Mr. Brindley and Mr. Baker. Mr. Brindley hired Mr. Baker to care for his fathe r and late r hired h im at his constr uction co mpany, al

though the

re was so me discrepancy between Mr. Brindley’s and Mr. Baker’s understanding of his job; Mr. Baker drove the testator to the lawyer’s office to have the final codicil drafte d and then

took the te stato r to Mr. Brindley’s office, and back again to the lawyer ’s office. Mr. Baker’s testimony regarding the testator’s condition differed from that of other people who saw the testator daily.
The jury could also have found suspicious, or indicative of the influence of Rober t Brindley over his father, Mr. Brindley’s sudden increa se d involvement in his father’s life, including the pa ym ent of over $40,000 in attorney fees in an effort to kee p the testator from being declared incompet ent. His contact

with his father

increased after the testator was plac ed in the nursing home.7 The 1990 codicil purported to revoke al l other wills and codicil s incl uding an earli er beq uest o f real p rop erty to an em ploy ee of testator. N othin g in th e reco rd ex plain s this ch ang e of in tention by th e testato r. -21- After the testa tor retur ned home a

nd beca me more mo

bile, the testator freque ntly wanted to

visit his son to discuss specific matters. The testator executed a pow er of attorney making his sonhi s attorney in fact, which the son attempted to use

to gain access to recor

ds of the l

umber bus iness. Linda Dale always took care of her pa rents and their business and only a fter the onset of the testator’s mental deterioration did Mr. Brindley b egin visiti ng more of ten and ta king an int

erest in the testator ’s health

care. W hile Mr. Br

in dley assert s that his f

ather wa s angry w ith Linda D ale because she did not

want him to

leave the nursing home and, allegedly, because of his dissatisfaction of some transactions in the lumber b usiness, the jury could have reached a diffe rent conclusion regarding the incentive for the testator’s cha nge of mind.
Other facts which the jury could have found and relied upon include: secrecy concer ning the will’s existence, even though Robert Brindley had been consulted by his father about the codicil, and the testator ’s inability to read due to medical problems. In addition, the April 1990 codicil attempted a change from prior testamentary dispositions in a way that benefitted Robert Brindley. Under it, he would receive half of the lumber business; under p revious wills and codicils, he would have receiv ed no inte

rest in tha t business

. 7
Mr. Brindle y relies on I

n re Estate of Elam, 738 S.W.2d 169 (Tenn. 1987), wherein the Tennessee Supreme Court affirmed the jury’s finding of insufficient evidence that undue influence was exercised, and observed: It is the long established rule in this State that in reviewing a judgment based upon a jury verdict the appellate courts are not at liber ty to weigh the evidence to decide where the preponderance lies, but are limited to d etermining whether there is material evidence to support the verdict; the appellate court is requir ed to take the

stronges t legitimate view of all of the evidence in favor of the verdict , to assume

the truth of all that tend s to suppor

t it, allowing all re asonable infere nces tosustain the

verdict , and to discard all to the contrary. Having thus examinedthe record, if there be any material evidence to support the verdict, it must be affirmed . . . . Elec tr ic Power Board v. S

t. Joseph Valley St ruct. , 691 S.W.2d 522, 526 (Tenn. 1985).
In re Estate of Elam , 738 S.W.2d at 171. This rule appl ies equa lly in the case before us. Herein, however, the jury specifically found that, while the testator possessed testamentary c apacity, the execution of the final codicil was not the testator’s own free act and will, but was the result of the undue influence of Robert Brindley, Sr.
The record befor

e us contains material evidence to support the jury’s finding of undue influence and, consequently, sufficient evidence to support

denial of a directed verdict. Obviously, there were disputed materialfacts, and from the evidence present ed more t han one c onclusion

could8 The jury was ins truct ed that the pr esumpti on of undue i nflue nce coul d be overc ome by clear and convi ncing evidence that the cod icil wa s “no t the resu lt of un due in flue nce.” In addi ti on, t he jur y was tol d that in making a determinati on as to u ndu e influ enc e, it c ould cons ider whetherthe t erms of t he codi cil unduly bene fit ted t he bene ficiaries. -22- have been drawn as to the issues presented. “ The rule is well settled that where the evidenc e is in conflic t, as here , and ther e is ma terial evide nce both ways on fact questions, this Court will not distur b the jury’s verdict.” East Tennessee & W.N.C.R. Co. v. Gouge , 30 Tenn. App. 40, 42, 203 S.W.2d 170, 171 (1947). Because the record contains suffi cient evidence which would allow the jury to find undue influence, the trial court correctly denie d Mr. Brindley ’s request for a directed verdict. B. Rebutting the Presumption
Mr. Brindley a

rgues tha t e ven if there is sufficient evidence for the pre sumption of undue influence to arise, the presumption was rebutted by clear and convinc ing evidence of the fairness of the transaction. He correctly states the generally applica ble rule that once the challengers present sufficient evidenc e to substa

ntiate their und ue influe nce cla im, the pro

ponents of the doc

ument must present clear a nd convin cing evid

ence that the challenged transaction or testamentary disposition was fair. Hamilton , 67 S.W.3d a t 793; see also Matlock , 902 S.W.2 d at 386; Richmond v. Christian , 555 S.W.2d 105, 107 (Tenn. 1977).
The “fairn ess of the

transac tion” st andard is readily applica ble and unques tionably r

easonab le in the situation where th

e questio n is whether the dominant party has taken undue advantage of the weaker party. In that case, the objec tive fairne ss to the we aker pa rty is rel evant and reason ably obtainable. See, e.g. , Richmond , 555 S.W.2d at 105 (holding unfair a transac tion wher

e an elde rly woman transferred her only asset to her son a nd, thereby, impoverished herself).
In the case

before us, however, the testator did not suffer any disadvantage . The fairness of the test ator’s distribution of his estate between his two children is not readily measurable by any objective standards. A parent’s view of fairness may be shapedby many factors which cannot be known by outsiders. However, because the part ies have each argued the fair ness, or lack thereof, of the distribution made in the codicil, and because fairness is a ques tion of f act, we examine the jury’s implicit finding that the presumption of undue influence was not overcome. 8 Considering the evidence in the record, a jury coul d find tha

t the cha nges to the

will unduly benefit t ed Robert Bri ndley in light of the unremitting care Linda Dale provided to her pare nts, as compared to Mr. Brindley’s involvement with them, the Dales’ lengthy involvement in running the lumber yard, Mr. Brindley’s lack of involvement in the operation of the lumber yard, the testator’s promise that the Dales would own the lumber yard if they continued to pay him, and Mr. Brindley’s full ownership of a construction business he acquired from the testator , even though Mr. Brindley testified he had pu

rchase d the asse

ts of that business from his father, and they w ere fe w at the ti me of purchase.-23-

While Mr. Br indley argues t

hat a com pletely e qual distr

ibution is f

air, we n ote the c odicil does not make an equal distribution because the testator only owned 51% of the lumber yard, and the codic il gave 98 % of that interest to Robert Brindley. Mr. Brindley argues that the distribution makes an equal dis tribution b y taking in to conside

ration the earlier transfe r to Linda Dale and her husband of part of the lumber yard business and earlier pur chases by Mr. Brindley of the gas station, the farm, and the construction businesses. To the extent the jury’s verdict includes a finding that the codicil would unduly benefit Robert Brindley, or can be construed as including a finding that the codicil didnot make a fair distribution, we find there was material evide nce in the record

to support the finding that the presumption of undue influence was not overcome.
Because the eff ect of un due influ ence cr

eates a disposition

contrar y to the ind

epende nt will of the testat or or grantor, Crain , 823 S.W.2 d at 194, c ourts will l ook at whe ther the disposition

is unjust or unnatu

ral or wh ether it d iffers f rom the te stator’sexpress ed intent io ns. Mitch ell , 779 S.W.2d at 388. For example, in Richmond an elderly woman, who lived with one of her children, in essence revoked an earlier sta ted intent to divide of her

estate equally among her three children by giving by deed the only asset she owned to the one child. The court found a pr esumption of undue infl uence had arisen on the basis of several circumstances, inc luding the donor’s sudden change of plan from making an equa l division of

her rea l estate among her three children to making a wholesale transfer to her son. Id . at 108.
The jury herein could have concluded that the codicil was c ontrary to the testato r’s previous ly expressed intentions to leave his remaining 51% in the lumber yard to his daughter and her husband who had worked in the business for many year s. At trial, Linda Dale testified:
He [the testator] said that Terry and I would [own the lumber yard]. He said that as long as we wou

ld take c are of h

imand Mother and

work, even though they might not be able towork, that they could draw their money like they always did, and we took care of the busine ss like we

did when t

hey wer e able to help us.
Other witnesse s confir

med this sta

ted inten t of the te stator. A

lthough the

re was so me testimony that the testator made statements closer in time to the execution of the c od icil that he wantedto leave

his esta t e equall y to his chi ldren, the jury could have f ound these

statemen ts inconclusive, not credible, or themselves the product of undue influenc e.
Mr. Brindley further argues that the fact that the testator received independent legal advice rebuttedthe presumption of undue influence ra ised by Linda Dale. Proof that the testator had independent

legal ad vice concerning

the tran saction isone way of showing fairness. Hamilton , 67 S.W.3d at 793; Mitchell , 779 S .W.2 d at 389. However, it is proof that the donor received independent

and complete advice “respecting the con sequences and advisability of the gift” that constitutes an example of fairness. Richmond , 555 S.W.2d at 107-08.
Moreover, the decedent

apparently did not see

k and, certainly , did not receive advice f roman independent source concerning the advisability of the transfe r t o her son

.9 The recor d indi cate s t hat t he pri or two codi cil s were not draft ed by Mr. Forr est er, who wrote the originalwill. -24- Attorney Price admitted this in his testimony; his discussion of the transac tion with Mrs. Christian was cursory a t be st. He merely dete

rmined that she knew that the deedtransfe

rred the entire tract t

o her son and that such a transfer was wha t she inte nded. This falls short of the rule stated in Turner v. Leathers , supra, t hat th e independent

advice be complete as well as private. I n that case, the donor met with a n alleged independent advisor and told him that he knew wha t he was doing and intended to do it; but, the court observed:
It is not a question of whe ther he knew what he intended to do, but how this intention was produ c ed, wheth er it was by abuse of a confidential and fiduciary relation.
Richmond , 555 S.W.2d at 109 (quoting Turner v. Leathers , 191 Tenn. 292, 297, 232 S.W.2d 269, 271 (1950)).
The testimony of Mr. Forr ester, the attorney

who prepared the codicil at issue, 9 does not c ome close to establishing that he e

xplored the

chang e in his first draft or the advisability of it. He did not even t estify that he wa s asked to make a change af ter his first draft. His only re collection of the execution of the codicil was that he was certain it followed the proc edure he normally used. He also testified that the testator understood what the codicil did. This testimonygoes to establishing proper execution and testamentary capacity . Undue influence presupposes a mind of testamentary ca pa ci ty. Parham v. Walker, 568 S.W.2d 622, 624 (Tenn. Ct. App. 1978). There is no evidence in the record that the testator sought or received independe nt or complete advice regarding the advisability of the change in his codicil and no evidence that any independ ent advis or sought to dete rmine the how his “intention was produced.”
On the basis of the evidence in the record, we c onclude that Mr. Brindley did not, as a matter of law, overcome the presumption of undue influence and, the refore, thecourt

properly allowed the issues to g o to the jur

y. The tri al court

correctly denie d a directed verd ict.
IV. Thirteenth Juror Next, Mr. Brindley argues a ne w trial should be granted on the issue of undue influence because the jury’s verdict was against the weight of the evidence. He maintains that the trial court was required to grant a new trial in that situation in performance of its duty as a thirteenth juror.
One of the fu

nctions a trial judge possesses and

should exercise is that of a thirteenth juror. Hold en v. Rannick , 682 S.W.2d 903, 904-05 (Tenn. 1984) (quoting Cumberland Telephone & Telegraph Co. v. Smithwick , 112 Tenn . 463, 469, 79 S.W. 803, 804 (1904)). In this capacity, the trial judge is un der a dut

y to independently weigh the evidence and determine whether the e vidence preponderates in favor of or against theverdict. Woods v. W alldorf & Co., Inc ., 26 S.W.3d 868, 873-25-

(Tenn. Ct. App. 1999) (quoting Shivers v. Ramsey , 937 S.W.2d 945, 947 (Tenn. Ct. App. 19 96)); Witter v. N esbit , 8 78 S.W.2d 1 16, 121 (T enn. Ct. Ap p. 1993); Grissom v. Metropolitan Gov’t of Nashville and Davidson Co. , 817 S.W.2d 679, 684 (Tenn. Ct. App. 1991). The trial judge, after making an independent decision on the issues, must be satisfied with the verdict, and, if dissatisfied, must set it aside. Holden , 682 S.W.2d at 905.
Where a trial judge approves the verd ict withou t comment, an appellate

court will presume that the judge has adequately performed her function as a thirteenth juror. Holden , 682 S.W.2d at 905 (citing Central Truckaway Sys. v. Waltner , 36 Tenn. App. 202, 217, 253 S.W.2d 985, 99 1 (1952)). The trial court, like the jury, is not bound to give rea so ns for its action in granting or denyi ng a new trial based on the preponderanc e of the evidence. James E. Strates Show s, Inc. v

. Jakobi k , 554 S.W.2d 613, 615 (Tenn. 1977). Where the reasons given by the tr ial court , o r statemen ts made, in ruling on the motion for new trial ind icate the trial court wa s actual ly dissatisfied withthe verd

ict or misa

pprehended its function as the thirteenth juro r, appellatecourts are required to grant a new trial. Holden , 682 S.W.2 d at 905; Jakobik , 554 S.W.2d at 615.
The discretion permitted a t rial judge in granting or denying a new trial is so wide that our courts have held that he does not have to give a rea son for his ruling. If he does give reasons, the appellate court will only look to them for the purpose of determining whether he passed upon the issue and was satis fied or d

issatisfied with the verdict. Wakefield v. Baxter , 41 Tenn. App. 592, 297 S.W.2d97; State v. Kenner , supra
. If the trial judge does not give a reason for his a

ction, the appella te court s will presume he did weig h the evidence and exercised his function as thirtee nth juror. Gordon’s Transports v. Bailey , 41 Tenn. App. 365, 294 S.W.2d 313; Benso n v . Fowler , 43 Tenn. App. 147, 306 S.W.2d 49.
Mize v. Skeen , 63 Tenn. App. 37, 43, 468 S.W.2d 733, 736 (Tenn. Ct. App. 1971).
The record before us contains no indica tion that th

e trial ju dge did

not properly perform the function of thir

teenth juro r, independently assess the evidence and the issues, and a pprove the verdict

. Mr. Brindley points to no such indication, but relies only on his argument that the evidence preponderates against the verdict. We cannot infer from any of the

court’s comments t

hat it did not weigh the evidence or that it disagreed with where the preponderance lay. See Shiv ers , 937 S.W.2d at 947. Beca

use we mu st presume , and in fa ct we fin d, that the tr

ial cour t proper ly perfo rmed its function as thirteenth juror, our review of Mr. Brindley’s argument regarding the suff iciency of the evidence is subject to the well-established standard discussed earlier. Woods , 26 S.W.3d at 874. Our roleis simply to ex amine th e record to determine if there is any mater ial evidence to support the verdict

. Tenn. R. App. P. 13(d). We have already deter mined that there is material evidenc e to support the verdict. V. Jury Instructions10 Th e patte rn ins tructio n use s the term “chie f ben eficiary .” -26- Mr. Brindle y als o arguesthat a ne w trial is r equired because the jury w as improp erly instructed. He maintains that the charge was incomplete beca u se it failed to provide sufficient information on the law of undue influe nce by distinguishing between direct and circumstantial evidence, the burden of proof, and confidential relationships in combination with other suspicious circumst ances. Mr. Brindl ey claimsthat the jury should have been instructed that proo f of thre ats and coercion regarding the provisions of the will are necessary to proveundue influence by direct evidence, that proof of his specific intent to unduly influence the testator was required, and that proof the transaction was fair, including proof of independent advice, would rebut the presumption of undue influence. The jury w as instructed on the issue of u

ndue infl uence a s follows:
A will or codicil thereto may n ot be e nforced if it is brought about by undue influence. Undue influenc e is the ov ercoming of the mind of the person making a will or a codicil by acts or conduct of another person.
Mere genera

l influenc e of anot

her per son that do es not af fect the act of ma king a will or a codicil is not undue influence. To be undue influence, the influe n ce must amount to coercion that destroys the freedom of choice of the person ma

king the w ill or codicil th ereto. I t substitute s the wishe s or desir es of ano ther per son and c ompels the maker of

the will or

codicil to dispose

of property in a way that would not have been done otherwise.
This language, with the excepti on of the t erm “co dicil,” istaken ve rbatim fr om T ENNESSEE P ATTERN J URY I NSTRUCTIONS C IVIL § 11.37 (3d ed. 1997). Omitting only a portion of § 11.38, dealing with individuals who have “no blood relation ship to the maker o f the will,” w hich was irrelevant to the case before us, the court then quoted the remainin g patter

n jury instr

uction as follows:
In determining the issues of undue inf luence, you may co nsider, a mong other

things, the following:
1. Did the terms of the will or codicil unduly benefit the beneficiaries 10 of the will or codic il? 2. Are the terms of the will or codicil different from the expresse d intentions of the maker of the will or

codicil? 3. Did the be

neficia ries’ re la tion ship to the person making the will or codicil give the be neficiaries an opportunity to influence the terms of the will or the cod ici l thereto?-27-

4. Did the mental andphysical condition of the maker of the will or codicil allow the maker’ s freedom of choi ce to be o vercome by the ac tions of oth

ers? 5. Did the beneficiaries of the will or codicil actively take p art in determining the provisions of the will or codicil, or in causing it to be executed?
The court also instructed the jury on the issue of confidential relationships and presumptions as follow s, track

ing the la nguage o f § 11.39 o f the pat tern jury instructi ons:
A confide ntial rel ationship

exis ts w henever the trust and confidence of one person is placed in the honesty and faithfulness of another.
There is a pre sumption tha t the will or codicil thereto was obtained by the undue influence of Robert W. Brindley, Sr. if you find:
1. That a confidential relationship existed between the person making the will and codicil thereto and Robert W. Brindley, Sr.; and 2. That Robert W. Brindley, Sr., was acti ve in cau sing the wi ll or codic il theret o to be made, and undul

y profite d from it. This pres umption may

be overc ome if Robert W. Brindley, Sr. proves by clear and convincing evidence that the making of the will and codicil thereto or

codicil th ereto was not the result of undue influence.
In addition, the trial court gave the pattern instruction on direct and circumstantial evidence.
In Mr. Brindley’s request for jury instruction, he submitted a list of issues and asked the court to instruct the jury on them using the “Civil Tennessee Pattern Jury Instruction s ( Third Edition), each in its entire

ty unless stated otherwise.” Included on that list were direct and circumstantial evidence; will contest -- natureof the pr oceedin gs; and burden of proof. In addition, Mr. Brindley requested only one special instruction, which dealt with capacity to mak e a testamentary gift, as contrasted with capacity to transact business generally. Significantly, the record contains no request from Mr. Brindley to give additional or more specific instructions on t he law of undue influence, confidential relations, or suspicious circumst ances. At the conclusion of the trial, the court made sure that the parties had c opies of the revisedjury cha

rge and c onsidere d the par ties’ cor rection s. Then the trial c ourt aske d counsel if there was “anything else on the charge we need to discuss.” Mr. Brindley’s counsel a nswere d in the negative. After the jury was instructed, the court heard objections to the charge. Mr. Brindl ey did notobject to the trial court’s charge on the law of undue influe nce, confidential rel ations, or suspiciou s circums tances.
Tenn. R. Ci v. P. 51.02 p

rovides:-28-

After the judge has instructed the jury, the parties sha ll be given opp ortunity to object, out of hearing of the jury, to the content of an instruction given or to failure to give a requested instruction, but failure to make objection shall not prejudice the rightof a party to assign the basis of the objection as error in support of a motion for a new tri al.
Rule 51.02 per

mits partie s to allege error in their motions for a new trial based upon either inaccuracy of the charge as given or failure to give a requested

appropriate instruction, even though no objection or exception in this respect was made at the tri al. Rule v. Empire Gas Corp. , 563 S.W.2d 551, 554 (Tenn. 1979). Prior to the ado ption of Rule 51.02 a party was precluded from predicating error upon an alleged omission in the instructions of a trial judge unless the party had pointed out such omission to the trial judge prior to the submission of the case to the jury. Id . “Rule 51.02 does not consti tute a departure from previous procedur e in this state . . . as the advisory committee comment to the rule indicates . . . .” Id . Rather, Rule 51.02 allows pa rti es in cer

tain circumst ances, not present herein, to object to jury instructions onappeal when an instruction was inapprop riately given or a party requested an instruction and it was not given despite the objecting parties’ silence to the objection before the lower c ourt. Nothing in Rule 51. 02 relieves a par ty of the duty to request an instruction. The procedural r ule governing this matter prior to Rule 51.02, namely that “if the court’s charge we re merel y incomplete, the duty was upon the aggrieved party to call the incompleteness to the attention of the court, or the defect is waived,” Homes v. American Bakeries Co. , 62 Tenn. App. 601, 466 S.W.2d 502, 505 ( 1976); see also Provence v. Williams , 62 Tenn. App. 371, 462 S.W.2d 885, 887 (1970), has not been changed by the enactment of Rule 51.02. The Tennessee Supreme Court has he ld since Rule 51.02 , that:
Rule 51.02 of the Tennessee Rules of Court Procedure has not abolished or a ltered the rule announced in the Provence and Holmes cases . . . that in or der to pr edicate error upon an alleged

omission in the instructions given to the jury by the trial judge he must have pointed out such omission to the trial judge by an appropr iate req uest for instruction.
Rule , 563 S.W.2d at

554. Therefore “nothing in the rule . . . relieves trial c ounsel of the burden of requesting an instruction to cover alleged omissions in the i nstructions as given.” Id. In other words, parties bear the

responsi bility of bringi ng to the tr ial cour t’s atten tion mater

ial omissio ns in the instructions. Id. ; Henry County Bd. of Educ. v. Burton , 538 S.W.2d 394, 397-98 (Tenn. 1976); Jones v. Tennessee Farmers Mut. Ins. Co. , 896 S.W.2d 553, 556 (Tenn. Ct. App. 1994). Where they fail to do so, thi s court will not reverse unless convinced that the party complaining has bee n prejudiced

by such instruction, or that justice is about to miscarry. Burton , 538 S.W .2d a t 397 (quoting Carney v. Cook , 158 Tenn. 333, 340, 13 S.W.2d 322, 325 (1929)). Although Mr. Brindley characterizes the instructions as “er roneou s,” his actual complaint is that additional or

more specific instructions should have been given. However , he did not ask for-29-

any additional instruction on these issues. Under the circ umst ances, we find that Mr. Brindley waivedthis issue by failing to bring to the court’s attention what he now a rgues were material omissions in the charge. Having considered the char ge, we cannot say that Mr. Brind ley was prejudiced

by the instructions given, or that justice is about to miscarry. Burton , 538 S.W.2d at 397.-30- VI. Accordingly, we affirm the judgment of the trial court. This case is remanded for any furthe r proceedings which may be necessary. Costs of this appeal are taxed to Robert W. Brindley, Sr., for which execution may issue if necessary.

____________________________________ PATRICIA J. COTTRELL, JUDGE