FILED

February 9, 1996

Cecil W. Crowson

Appellate Court 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, )

)

Plaintiffs/Appellants, )

) Jackson Circuit

) No. 1122

VS. )

) Appeal No.

) 01-A-01-9509-CV-00424

ARLENE BUSH, Individually and )

Executor Under the Will of )

JESSIE HANEY, )

)

Defendant/Appellee. )

CONCURRING OPINION

The majority has reached the correct result in this case. I have prepared this

separate opinion for two reasons. First, we should state clearly that the

contestants’ trial counsel should not be faulted for requesting the trial court to use

a Tennessee Pattern Jury Instruction that the Tennessee Supreme Court had

disapproved only one month before trial. Second, we should conclude without

equivocation that the record contains material evidence upon which the jury could

have determined that the beneficiary had clearly and convincingly rebutted the

presumption of undue influence arising from her confidential relationship with

Mrs. Haney. 
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I.

Jessie Haney executed a will on January 4, 1991, leaving her estate to a

niece. She died three years later at the age of eighty-eight. Three of her sisters

and two of her nieces challenged the will after it was admitted to probate, alleging

that the beneficiary had exerted undue influence on Mrs. Haney and that Mrs.

Haney lacked sufficient testamentary capacity to execute a will.

The contestants proved at trial that Mrs. Haney had a confidential

relationship with the beneficiary. Accordingly, they were entitled to the benefit

of the presumption of undue influence arising from the existence of a confidential

relationship. The beneficiary put on proof to rebut this presumption, and the case

then went to the jury. The trial court’s instructions, however, contained an error

concerning the amount of proof needed to rebut the presumption of undue

influence.

Relying on Tennessee Pattern Jury Instruction 11.60, the trial court

instructed the jury that the beneficiary could rebut the presumption by proving by

a preponderance of the evidence that the will was not the result of undue

influence. Unfortunately, the Tennessee Supreme Court had specifically rejected

this instruction approximately one month 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 committee of the

Tennessee Judicial Conference, are frequently used as a source for instructions in

the trial court. State v. Rutherford, 876 S.W.2d 118, 120 (Tenn. Crim. App. 1993).

Their use is not mandatory, State v. Harris, 839 S.W.2d 54, 74 (Tenn. 1992), cert.

denied, 113 S. Ct. 1368 (1993), and notwithstanding their popularity, they do not

have the force of law and do not bear the imprimatur of the Tennessee Supreme
1

See West’s Tennessee Decisions, 902 S.W.2d No. 2 (September 5, 1995).

2A 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 databases

such as LEXIS or Westlaw.

3Crain 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. 1987); Taliaferro v. Green, 622 S.W.2d 829, 835-36 (Tenn.

Ct. App. 1981).

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Court or the General Assembly. State v. Phipps, 883 S.W.2d 138, 152 (Tenn.

Crim. App. 1994). Accordingly, the preface to the instructions points out that “no

prior approval of any instruction has been sought from the Supreme Court” and

that “[t]hese instructions are as subject to objection and reversal as instructions

have always been." Tennessee Pattern Jury Instructions - Civil, 8 Tenn. Practice

at vii (2d ed. 1988).

The Tennessee Supreme Court has not hesitated to disapprove pattern

instructions found to be deficient. See, e.g., Matlock v. Simpson, 902 S.W.2d at

386 (criticizing T.P.I. - Civil 11.60); State v. Dyle, 899 S.W.2d 607, 612 (Tenn.

1995) (criticizing T.P.I. - Criminal 42.05). Thus, both the bench and the bar

understand that the use of a pattern instruction does not displace the trial court’s

obligation to prepare and use fair and accurate instructions, State v. Phipps, 883

S.W.2d at 152, or trial counsel’s obligation to call material misstatements or

omissions to the trial court’s attention.

The trial of this case occurred only thirty-one days after the Tennessee

Supreme Court issued its decision in Matlock v. Simpson. The opinion was not

officially published until September 5, 1995 when it appeared in the advance

sheets.1 While the decision may have been available earlier in other unofficial

publications,2 neither the attorneys involved in the trial nor the trial court should

be faulted for failing to discover that T.P.I. - Civil 11.60 was no longer correct.

This court had repeatedly employed the standard reflected in the pattern

instruction,

3

 even after noting that the Tennessee Supreme Court had not approved

the instruction and that the instruction was inconsistent with earlier opinions

requiring clear and convincing evidence to rebut the presumption. Reynolds v.

Day, 792 S.W.2d 924, 928 (Tenn. Ct. App. 1990). The Tennessee Supreme Court
4The Tennessee Supreme Court’s denial of an application for permission to appeal was

at one time viewed as an endorsement of the reasoning and result of an intermediate appellate

court opinion. See Pairamore v. Pairamore, 547 S.W.2d 545, 548-49 (Tenn. 1977); Beard v.

Beard, 158 Tenn. 437, 442, 14 S.W.2d 745, 747 (1929). This is apparently no longer the case

in light of the Tennessee Supreme Court’s holding that the denial of an application for

permission to appeal does not necessarily 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).

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itself declined to review these decisions,4

 and thus it would not have been

unreasonable when this case was tried to believe that the principle embodied in the

instruction had taken on an aura of settled law.

III.

The contestants are in no position to use Matlock v. Simpson to challenge

the jury instructions or the trial court’s approval of the evidence as thirteenth

juror. They requested the instruction and did not take issue with its correctness

in their motion for new trial. As a consequence, they have waived their

opportunity to raise this issue, and they must accept part of the responsibility for

this error. Tenn. R. App. P. 3(e); Tenn. R. App. P. 36(a).

The contestants, however, insist that we should review the jury’s verdict

using the clear and convincing evidence standard required by Matlock v. Simpson.

We should not compound the error in the trial court by continuing to ignore the

plain mandate of Matlock v. Simpson. Accordingly, our task on this appeal should

be to determine whether the record contains material evidence upon which the jury

could reasonably conclude that the beneficiary presented clear and convincing

evidence to rebut the presumption of undue influence that arose once the

contestants proved the existence of a confidential relationship between Mrs.

Haney and her niece.

The clear and convincing evidence standard is more exacting than the

preponderance of the evidence standard. See Rentenbach Eng’g Co. v. General

Realty, Ltd., 707 S.W.2d 524, 527 (Tenn. Ct. App. 1985). It falls somewhere

between the preponderance of the evidence standard and the beyond a reasonable

doubt standard. Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn. Ct. App. 1992).
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Clear and convincing evidence eliminates from the fact finder’s mind any serious

or substantial doubt concerning the correctness of the conclusions to be drawn

from the evidence, see Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3

(Tenn. 1992), and produces a firm belief or conviction with regard to the accuracy

of the conclusions. Brandon v. Wright, 838 S.W.2d at 536; Wiltcher v. Bradley,

708 S.W.2d 407, 411 (Tenn. Ct. App. 1985).

Recapitulating the testimony serves little useful purpose at this point. The

majority’s opinion contains lengthy excerpts from the record illustrating that Mrs.

Haney received independent legal advice in the preparation of her will and that

she was aware of the significance of what she was doing when she executed the

will. Based on all the testimony, we should simply conclude that the record

contains material evidence to support the jury’s conclusion that Mrs. Haney was

capable of executing a valid will and that the beneficiary clearly and convincingly

rebutted the presumption of undue influence arising from her confidential

relationship with Mrs. Haney.

__________________________________

WILLIAM C. KOCH, JR., JUDGE