# FILED
February

9, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

IN RE: ESTATE OF ) JESSIE HANEY, Deceased ) ) MABLE YOUNG, LEONA YOUNG, ) BEULAH YOUNG, GLENDA ) YOUNG, and JEWEL MITCHELL, ) ) Plaintiff s/Appella nts, )

) Jackson Cir

cuit ) No. 1122 VS. ) ) Appeal N o. ) 01-A-01- 9509-CV- 00424 ARLE NE BU SH, In dividually

and ) Executor Under the

Will of ) JESSIE HANEY, ) ) Defendant/Appellee. )



## CONCUR RING OPIN ION

The maj ority

has reac hed thecorrect

result in t his case. I have pr

epared this separate opinion for two reasons. First, we should state clea rl y that the contestant s’ trial counsel should not be faulted for reque sting the tr ial court t o use
aTennessee Pat tern Jury Inst ruction t hat the Te n nessee Supreme Court had disapproved only one

month b efore tr

ial. Se cond, we

should conclude withou t equivocati on that the r

ecord contains m aterial evidence upon which t he jurycould have determined that the beneficiary had cl e arly and convinc ingly r ebutted the presum ption of undue i nfluence arising fr om her confidenti al relat

ionship with Mrs. Haney.-2- I.

JessieHane y exec uted a wil l on Januar y 4, 19 91, leavi ng her esta te to a niece. She d ied thr ee ye ars l ater at the age of eighty-eight. Thre e of her sisters and two of

her niece s challenge d the will aft er it wa s admi tted to prob ate, al leging thatthe benef

iciary had exert

ed undue inf

luence on Mrs . Han ey and that Mr s. Haney lacked suf

ficient t estam entary capacity to execute

a will.

The contestant s proved at trial tha t M rs. Ha

ne y had a confidential relations hip with the

beneficiary. Ac cordingly, they we re entitled tothe benef

it of the presum

ption of undue

influence arising fr om the existence of aconfidential relations hip. The bene ficiary put on proof to r

ebut this presum

ption, and t

he case then went to the jur y. T he trial cour

t’s instr uctions, ho wever, contained an error concernin g the am

ount of proof needed to r ebut the pr

esump tion of undue influence.
Relyi ng on Tenne ssee Pat tern Jury Instruction 11.60, the trial court instructed the jurythat the beneficiar y could rebut the presum

ption by proving by
apreponderance of th e evidenc e that the will wa s not ther esult of undu e influence. Unfortunately, the Tennessee S upreme Court had specifically rejected this instructio n app rox ima tely on e mont h earlier in Matlock v . Simpson , 902 S.W. 2d 384, 386 ( Tenn. 1995 ). Apparently neither the trial court nor the lawyers for the parties were aware of the Matlock v . Simpson decision when they

tried this
case.

II.

The Tennessee Pattern Jury Instructions, prepared by a comm ittee of th e Tennessee Judicial Conference, arefrequent ly used as a sourc e for instr

uctions in the trial cour

t. State v. Rutherfor

d, 876 S.W. 2d 118, 120 ( Tenn. C rim. App. 1993). Their use is not mandatory, State v. H

arris , 839 S.W.2d 54, 7 4 (Tenn. 199 2), cert. denied , 113 S. Ct. 1368 (1993), and notwit hstanding their

popularity , they

do not have th e fo rce of l aw a nd do no t b ear th e imp rima tu r of th e Te nn ess ee S up reme1 See West’s Tennessee Decisions, 902 S.W.2d No. 2 (September 5, 1995).

2 A synopsis of the opinion appeared in the February 20, 1995 edition of

the Tennessee Attorneys Memo. See 20 T.A.M. 8-1. It may also have been available on electronic database s such as LEXIS or Westlaw.

3 Crain v. Brown, 823 S.W.2d 187, 193- 94 (Tenn . Ct. App. 1991 ); Owen v. Stanley, 739 S.W.2d 782, 787 (Tenn. Ct . App. 198 7); Taliaferro v. Green, 622 S.W.2d 829, 835-36 (Tenn. Ct. App. 1981).
-3- Courtor the General Assembly. Sta te v. P hipps , 883 S.W .2d 138, 15 2 (Tenn. Cri m. App. 1994). Accordi ngly, the pref ace to the instructio ns points out th at “n o prior approval of an y i nstruction h as been soug ht from the Supreme C ourt” and that“[t]hese instructions are as subje ct to object ion an d reversa l as instruc tions have alway s been." Tennesse e Patter n Jury Instructions - Civil, 8 Tenn. Practice at vii (2d ed. 1988).

The Tennesse e Suprem

e Court ha s not hesita

ted to disapprove pattern instruction s found to be deficient. See, e.g., Matlock v . Simpson, 902 S.W.2d at 386 (criticizing T.P.I. - C ivil 11.60); Stat e v. D yle, 899 S.W .2d 607, 61 2 (Tenn. 1995) (critic izing T. P.I. - Crim inal 42.05) . Thus, both the benc h andthe bar understand

that the use of a pattern inst ructi on do es no t dis place the tr ial co urt’s obligation toprepare

anduse fair and accurate ins truction s, State v. P hipps, 883 S.W. 2d at 152, or

trial coun sel’s ob ligation to c all m aterial missta te ments or omissi ons to the tr

ial court’ s attention

.
The tri a l of this case occurred only thirty-one day s after the Tennessee Sup reme Court is su ed its deci sion in Matlock v . Simpson. The opinio n was not official lypublished unt

il Septem ber 5, 1995 when it a

ppeared in t he advance sheets. 1 While t

he decision

may have been available

earlier in other u nofficial publication s, 2 neitherthe attorneys involved in the tria l nor the tr

ial court s hould be faulted for failing to discover that T. P.I. - Civil 11.6 0 was no lon ger corr ect. This court had r

epea tedly employ ed the standard reflected in the pattern instruction , 3 even afte

r noting that the Tennessee Supreme Court had not approved the instructio n and that th e instruct ion was inc onsiste nt with ear lier opinio ns requiringclear a

nd convincinge vidence t o rebut th e presumption

. Reynolds v. Day, 792 S.W .2d 924, 92 8 (Te nn . Ct . Ap p. 1 99 0). The Ten nes see Sup reme Court4 The Tennessee Supreme Court’s denial of an application for permission to appealwas at one time viewed as an endorsement of the reasoningand result of an int ermedia te appellate court opinion. See Pairamore v. Pa iramor e , 547 S.W.2d 5 45, 548-4 9 (Tenn. 1977); Beard v. Beard, 158 Tenn . 437, 442, 14 S.W.2d 745 , 747 (192 9). This isappare ntly no longe r the ca se in light of the Tenn esse e Supreme Court’s holding that the denial of an application for permission to appeal does not nec essa rily commit the Court to all the views expressed in the intermediate appellate court’s opinion. Swift v. Kirby , 737 S.W.2d 271, 277 (Tenn. 1987).
-4- itself declined t

o review these de c isions, 4 and thus it would not have been
unreasona

ble when this c ase was tried to be lieve that the principle em

bodied in the instruct ion had t aken on an aura of sett led law.

III.

The conte stants are

in no position

to use Matlock v . Simpson to challen ge t he jury instr

uctions or t

he trial c ourt’s a

pproval of the evidenc e as thirt eenth juror. They

requeste d the instru ction and did not t ake issue w ith its corr ectness in their m ot ion for new trial. As a conse quence, they ha ve waive d their opportunity

to raise this issue, and they must accept pa rt of the r esponsibilit

y for this error. Tenn. R. App. P. 3(e); Tenn. R. A pp. P. 36(a).

The contestant s, howeve r, insist that we sh ould revi ew the jury’s ver dict using the clea r and con vin cin g ev ide nce sta nda rd re qui red by Matlock v . Simpson

. We should not com

pound the error i n the trial court by continuing toignore the plainmandate of Matlock v. Simpson . Acco rdingly , our task on this appeal shou ld be to determine whether the record contains material evidence upon whichthe jury couldreasonably conclude that the beneficiary pr esented clear and co n vincing evidence to rebut the

presum ption of undue

influe nce that arose

once the contestant s proved the e xistence of a confide ntial rel ationship between Mr s. Haney and her niece.

The clear and convincing ev idenc e standar d is mor e exactin g than the prep ond erance of the evid ence stand ard. See Rentenbach Eng’g Co . v. General Realty, Ltd., 707 S.W.2d 524 , 527 (Tenn. Ct . App. 1985). It falls s o mewhere between the preponderance o f the evidence standa rd and the beyond a reasona

ble doubt standard

. Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn. Ct. A pp. 1992).-5-

Clear and convincing evidence elim inates fr om the fact fin der’s m

ind any serious
or substantial d oubt con cerning th e correctnes s of the con clusion s to be drawn from the eviden ce, see Hodges v. S.C. To of & Co., 833 S.W. 2d 896, 90 1 n.3 (Tenn. 1992), and produces a firm belief or conviction w ith regard to the accuracy of the conclu sions. Brandon v. Wright, 838 S.W. 2d at 536; Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct. A pp. 1985).
Recapitul ating the testim ony ser ves little useful purp ose atthis point. The majority’s opinion conta

ins lengthy

excerpts from

the record i llustratin g that Mrs. Haney received independent legal advice in the prepar at ion of her will and that she was a ware of the signifi cance of

what she w as doing when she exec uted the will. Based on a

ll the test

imony , we shou ld sim

ply conclude that the record contains materialevid ence t o sup port the ju ry’s conclusion that Mrs. Haney was capable of execut ing a valid w ill and that

the benef iciary clearly and convinc ingly rebutted the presumption of undue influence arising from her confidential rela tio nsh ip wi th M rs. H ane y.

________ __________

_______________

_ WILLIAM C. KOCH, JR., JUDGE