# FILED February

9, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk IN RE: ESTATE OF JESSIE HAN EY, ) DECEASED. ) ) MAB LE YO UNG , ET AL, ) ) Plaintiff s/Appella nts, )

) Jackson Cir

cuit ) No. 1122 VS. ) ) Appeal No. ) 01-A-01-9509-CV-00424 ARLENE BUSH, I

ndividually, and as ) Ex ec ut or un de r t he Wi ll of Je ss ie Ha ne y, )

) Defendant/Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE CI RCUIT COURT OF JACKSON COUNTY AT GAINESBORO, TENN ESSEE
HONORABLE B OBBY CAPERS, JUDGE
James L . Bass BASS ANDBASS Post Office Box 500 Carthage, Tennessee 37030 ATTORNEY FOR PLAI

NTIFFS/APPEL

LANTS
BOB BY J AME S E LLIS P.O. Box 192 Gainesboro, Tennessee 38562 ATTORNEY FOR DEFENDANT/APPEL LEE
AFFIRMED AND

REMANDED HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION SAMUEL

L. L EWIS, JUD GE, CONCU RS AND WIL

LI AM C. KOCH, JR., JUDGE, CONCURS IN SEPARATE OPINI ON.-2-

IN RE: ESTATE OF JESSIE HAN EY, ) DECEASED. ) ) MAB LE YO UNG , ET AL, ) ) Plaintiff s/Appella nts, )

) Jackson Cir

cuit ) No. 1122 VS. ) ) Appeal No. ) 01-A-01-9509-CV-00424 ARLENE BUSH, I

ndividually, and as ) Ex ec ut or un de r t he Wi ll of Je ss ie Ha ne y, )

) Defendant/Appellee. )
O P I N I O N This is a will contest in which the contestants have appealed from a jury verdict and judgmen t in favor of the wil

l.
The deceased, Jessie Haney , died on February 14, 1994, at the age of 86.
The will of Ms. Haney

was probated in common form by Arlene Bush, niece of deceased, sole beneficiary and executrix designated in the will. She is designated hereafte r as the proponent. Thereafter a contest wa s filed by the ca ptioned plaintiffs who will be hereafter designated contestants. The contest was duly certified to the Circuit Court for trial where a ju ry fou nd in fa vo r o f t he wi ll an d j ud gm en t w as en te re d a cc or di ng ly.
On appeal to this Court, the contestants present the following issue: Whether the presumption of the existence of a confidential relationship between the proponent of the will and the testator was rebutted by

clear a nd convincing ev

idence o f the fa

irness of the transaction, and whether the will was the free, voluntary and conscious act of the testator. The prop onent sta

tes that th e only issue on a

ppeal is w

hether t he verdict of the

jury is supported by materia

l evidence.-3- The prop onent, the

niece of deceas ed, was t

he princ ipal sour

ce of as sistance

to deceas ed and he

r husband during t heir dec lining y

ears. Pr oponent h ad author

ity t o write checks on the bank account of dece ased and attended to business for her. She bought groceries, medicine, household nece ssities and paid various expenses, partly with her own funds. The husband died on A pril 27, 19 93, afte

r the exec ution of th

e subject will.

Deceas ed suffered f

rom ar thrit is, h eart t roubl e, dia betes , inn er ear t roubl e and h igh blood pre ssure, a

nd requir ed daily visits by health c are nur ses.
In November, 1990, dec eased was hospitalized and treated for shortness of bre ath. She was discharged November 25, 1990. The reafter she used a walker or wheel chair and was not able to do housework. Her ey esight was impaired.

On J anu ary 4 , 19 91, pro pon ent and dec eas ed v is it ed t he o ffi ce o f J udg e Ro ber t L. Johnson where " they " told him to prepare a will and what to put in it. Proponent had prepar ed a wi ll for deceas ed, bu t decea sed pr eferred to hav e her wi ll pre pared b y Judge John son wh o had b een her husba nd's l awyer and h ad don e some legal w ork fo r her. J udge Johnson instructed proponent and deceased to return later in the day when the will would be ready f or execution.
Proponent and deceased departed, ate lunch and stopped at the store of the husband of proponent where deceased executed the will which proponent had prepared and a g eneral power of attorne y to propone nt.
Proponent and deceased then drove to the office of Judge Johnson who brought the will he had prepared to deceased who r emained in proponent's vehicle. Judge Johnson read the will to deceased and summoned witnesses who witnessed the signing of the will by deceas ed, which read a s follows:-4- I Jessie Haney

of R., #3 Gainesboro, Tennessee, hereby make my la st will, re

voking a ll previou s wills and

codicils. I will to Arlene Thomas Bush all of the pr operty, both rea

l and personal that I may

own at the time of my dea th without limitation or exception. I have confidenc e that Arlene will allow my husba nd, Ellison Haney to use w

hat he needs if he survives me. I nominate Arlene B ush as my executrix of my will and request no bond of her. . . .
The briefs of the

parties d o not discu ss the issue

of whether the undisputed f acts establish a confid ential re lationship as a matte

r of law; and this issue will not be discus sed in this opinion.
The issue as stated by a

ppellants assumes the existence of a confidential relation which, if it exists, creates a presumption of undue influence unless the contrary is shown by clear and convincing evidence
. Matlock v. Simpson, Tenn. 1995, 902 S.W.2d 384.
Contestants insist that the evidence in this case is insufficient to justify a f inding by the jury of cle ar and convincing evidence to re but the presumption of undue influence. There is evidence that deceased initially declined to sign a will prepared by proponent which named the husband of deceased as sole bene ficiary if he

survived deceased, and, instead, insisted upon a will prepared by her husband's lawy

er. The lawyer received his instructions from "them" (proponent and dece ased). There is no evidence as to which instructions wer e given b y pr

oponent a nd which w ere given by

deceas ed. Dec eased ha

d ample a ccess to independent legal advice from a la wyer of her selection. Before execution, the will was rea d to deceased by

the lawyer . It was handed to her a nd she read it. After the execution of the will on January 4, 1991, decea sed continued to live until February 14, 1994, a period of over three ye ars, without executing any further testamentary

instrument, even though during that three y ears, sh e resided at vari ous times with variou s relativ es.-5- Proponen t testifie d: Q. Who tol d Mr . Jo hns on w

ha t you w ante d to

ta lk a bou t? Who initiated the conversation with Judge Johnson? A. I talked and she did too. Q. Both of you? A. Yes. Q. And so the two of you then told Mr. Johnson that she wanted to make a will, I assume? A. Yes. Q. And the two of you told Mr. Johnson what to put in the will, I assume? A. Yes. Q. And is w

hat y ou and Mrs . Haney

told Mr. John son, is basically w

hat he did ? Did he compl y w ith y our instructions? A. Yes. Q. To do the

will? A. Yes. Q. As you and Mrs. Ha

ney instructed him to do? A. Yes.

. . . . Q. Did Mr. Johnson give the will then to her? A. Yes. Q. And did

she rea d it? A. Yes, she did.

. . . . Q. Okay, did y

ou ever expel (sic) any

influence over Jessie or make her do something she didn't want to do? A. No, sir.

. . . . Q. I am talking about the discove ry deposition we took in y our office on August 9, 1994 and y our client is now testifying she couldn't remember who sat in the car a nd where. And I a

m-6- readin g from p age 26, in your de posi tion . I will s tart o n page 25 on the q

uestion a nd y our answ er said, "And the n we cam e back and Mrs. Haney

sat in the car right up, right here a nd I went over to Mr. Johnson's office and Bob Johnson and Mildred D ennis got in the ba ck seat o f the ca

r, they read thi s over to Mr s. Haney , the will a nd deed a nd she signed it rig

ht in the car. She did not get back out and go ove r there." Do you re ca ll th at te st im on y?

. . . . Q. My question i s, is this sta

tement tha

t you made on A

ugust 9, 1994 a t

rue state ment? A. Yes. Judge Johnson testified: Q. I a ssume, ba sed on y

our prev ious knowl edge o f Jessie Haney and your conv ersation

with her t

hat day , what wou

ld you r o pi ni on be , a s t o h er me nt al st at e t ha t d ay? A. As to wh at? Q. As to whether or not she knew what she was doing and under stoo d what she was doin g? A. There would be no will here if I didn't think she was compete nt.

. . . . A. There wasn't any problem o

r I w ould have

detected it. Q. If y ou had seen or sensed that Arlene Bush wa s trying to do something she shouldn't have done, y ou would have stopped the program right there? A. Yes.

. . . . Q. If you had in any

way sensed th at Arlene Bush w as try ing to impose her will on Jessie Haney that day , or if Jessie Haney wasn't mentally

competent to execute a will, you would ha ve been eth ically bound to sto

p the proc eeding

right there, would you not? A. It would make no differe nce about ethics, I wouldn't have drawn it.-7- Hillis Caruthers testified: Q. All right, I am g oing to start with, did you know Jessie and Al ex Ha ne y? A. Yes, si

r. about t hirty -five or

forty ye ars. Q. All rig

ht, how would y ou categ orize your rela tionship with them during that th

irty -five or

forty ye ars? A. Well, we had a good relationship. Q. Were y

ou good f riends wi th them? A. We wer

e good f riends wi th them. Q. All rig

ht. A. Me and Alex had cattle together and raised corn and tobacco together. Q. Just very

close fr iends in ot

her wor ds? A. Close f

riends. Q. And as a matter of fact, I believe you lived with them for awhile? A. I l ived in the

basemen t of their house for five y ears.

. . . . Q. Now, tell me what kind of will Jessie had as far as whether or not she let people tell her to do things she didn't want to do? A. No. Now, Jessie didn't let nobody tell her to do nothing. There wasn't any

forcing her into it. She done what she wanted to do. Sue Salisbury testified: Q. Did you know Jessie well enoug h to know whether or not she was a pretty

strong willed person? A. Yes, sir. Q. And was she a pretty

strong willed person? A. Yes, sir. Q. If Jessie wan

ted to do so mething , would she do it, ge nerally speaking, if she were able to? A. yes, sir.-8- Q. If Jessie didn't want to do something, could a nybody convince her to do it, if she h ad set he r head not to do it? A. I don't think so. Q. Thank you. Access to independent legal advice is one method of overcoming the presumption of undue influence. Crain v. Brown, Tenn. App. 1991, 823 S.W.2d 187. This Court does not hold that the foregoing evidence is clear and convincing evidence rebutting the presumption of undue influence.
However, this Court does hold that the foregoing e vidence was sufficient grounds for a jury to find clea

r and convincing evidence re butting the presumption of undue evidence.
The Trial Court was not in error for deny ing a new trial for lack of clea r and
co nv in ci ng ev id en ce to su pp or t t he ve rd ic t o f t he ju ry.

Contestan ts' brie f states: While Matlock vs. Simpson, supra, p. 10, was decided by the Supreme Court on February 13, 1995, and this case was tried on March 16, 1995, in good faith the trial court charged the jury to apply

the preponderance of the evidenc e standard as the requirement to overcome the presumption of undue influence arising out of confidential and fiduciary relationships, in accord with the c ases decided prio r to the op inion and in accor d with the Tennessee Pattern Jury Instruction - Civil 11.60. Matlock overruled the preponderance of the evidence rule and established the correct standard of proof a s the clear and convincing evidence rule. The Court ca n remand to the lower court for a proper application of the standar d of proof to be applied. Prior to February

13, 1995, the date of the filing of the opinion of the Supreme Court in Matlock v. Simpson, Tenn. 1995, 902 S.W.2d 57, the prevailing law in Tennessee was that th e p re su mp ti on of

un du e i nf

lu en ce fr om co nf

id en ti al re la ti on wa s r eb ut ta bl e b y a preponderance of the evidence
. Tennessee Pattern Jury Instructions, Civil 11.60; Reynolds v.-9-

Day , Tenn. A

pp. 1990, 7 92 S.W.2d 924 ; Taliaferro v. Green, Tenn. App. 1981, 622 S.W.2d 829.

This case

was trie d on March 16, 1995, 31 day s after t he filing of the opinion in Matlock. Thus, the law announced in Matlock was applicable to the trial and decision of the present case. I

f the contestants had been aware of the Matlock decision, and if they ha

d moved for a new trial on the ground of an e rror in the charge to the jury , this Court would be in position to remand for a new trial based upon the holding in Matlock.
Undoubtedly neither c ounsel nor the Trial Court was aware of the Matlock decision, for no special request was made for a Matlock charg e, and the

Trial Cour

t charg ed as follows: Under the law, one who is another's attorne y in fact on an unrestr icted pow er of at

torney has a con fidentia l relatio nship with the one who executed the power of attorney . In such cases, undue influence is presumed and the burde n of proof shifts to th

e recip ient. The

evidenc e neces sary

to overc ome this pr es um pt io n e ff

ec ts a c on fi de nt ia l r el at io ns hi p i s b y a preponderance of the evidence
. The motion for a new trial filed on April 17, 1995, stated: 1. The proponent of the will did not by a preponderance of the evidencerebut the rule of the law that a presumption of a confidential relationship existed between Jessie Haney and Arlene Bush, because Jessie Haney had given Arlene Bush an un re st ri ct ed po we r o f a tt or ne y. 2. The preponderance of the evide nce showed the proponent exercised undue influence over Jessie Haney in the making of the will, b ecause : 1) the will unduly benefit ted the pr oponent; 2) the proponent was active in procuring the will; 3) the existence and the contents of the will were kept secret a nd kept in the possession of the proponent; 4) the proponent was in the presenc e of the maker of

the will a t all times d

uring th e events leading up to the actual execution of the will; 5) there was presen t at al l tim es the oppor tuni ty afforde d by the pr opone nt's relat ions hip t o the d eceden t to i nflue nce her ; 6) th e deced ent's physical health condition was de teriorating such as to permit an overthrowing of the freedom of will. (Emphasis supplied.)
The mo tion did n ot men tion absen ce of "cl ear and convi ncing e viden ce" or a c harge in regard thereto.-10- Under the circumstances, any error of the Trial Court in failing to apply the decision in Matlock

was waived, and is not a proper ground of reversal. T.R.A.P. Rule 3(e), Potter v. Tucker, Tenn. 1985, 688 S.W.2d 833.
The proponent suggests a finding of "frivolous appeal," but such is not deemed appropriate in the present case.
The judgment of the Trial Court is affirmed. Costs of the appeal a re taxed against the contesta nts. The c ause is r

emanded to the Tri al Court f

or any necessa ry further procedu res.

Affirmed and Remanded.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

_____________________________________ SAMUEL

L. L EWIS, JUD GE, CONCU RS

WILL IAM C. KOCH, JR., JUDGE, CONCURS IN SEPARATE OPINI ON.