### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Ju ly 7, 20 09 Ses si on

IN TH E MATTE R OF: THE ESTAT E OF LUCI LLE ANNETTA SCHI SLER

Appeal f rom the Chancer y Court for Law rence County No. 13861-08 Rober t L. Jones, Jud ge

No. M2008- 02479-COA-R 3-CV - F iled October 19, 2009

Two of a dece ased mother’s six children appea l a jury ’s specific finding s that their mother’s last will

was invalid beca

use they had a confide ntial rela tionship with their mother and unduly influence d her
to execute the will. Plaintiffs, the dece dent’s four other children, commence d this action to contest the wil l the appellants offe red for probate. On appeal, t he appellant s co n t en d there is no materia l evidenc e to support the jury ’s finding s that they had a confide ntial rela tionship with their mother or that they exerted undue influence

. Appellants al s o contend the trial court err ed by admitting evidenc e of a criminal conviction of one of the appellants. Whether t o ad m i t the evidenc e was within the sound discretion of the trial co u rt an d we fi nd the court did not abuse its discretion by admitting the evidenc e; moreove r, the trial co u rt gav e a limit ing instruction that evidenc e of the crime was only rele vant as it pe rtained to motive and intent to influence the testatrix to chang e her will. As for the jury verdic t, we find substantial and materia l evidenc e that suppo rt s t h e j u ry ’s finding s in the rec ord. Ac cording ly , we a ffirm the tria l court in all respe cts.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Chancer y Court Affi rm ed

F R A N K G. C L E M E N T , J R ., J
., delivere d the opinion of the court, in which P A T R I C I A J

. C O T T R E L L , P.J
., M.S., and A N D Y D. B E N N E T T , J ., joined.

W. Charles Doer fling er, L awr ence burg
, Tenne ssee, for the appellants, L inda L ou Stem and Carroll L y nn Schisler, Sr.

Charles W. Holt, J r., Be n Boston, and Ry an P. Durha m, L awr ence burg
, Tenne ssee, for the appellee s, I ris Edwar ds Wix
, Donald Edwar d Schisler, Ralph Truman Schisler and Aug ust Fr eder ick Schisler.

OP INION

L ucille Annetta Schisler (hereinaf ter “Mrs. Schisler”) died on Aug ust 17, 2 0 0 6
, at the age of 80. She was survived by six children: Carroll, Donnie, Fr eddie, I ris, L inda, and Ralph. She lived
most of her life on a family far m in Carroll County
, Mary land. Be cause of deter iorating health, Mrs.Schisler reloc ated to Tenne ssee in Dec ember of 2004 to live with her son, Donnie. I n May of 2005,

she moved in with her d au gh ter, L inda, who lived in L awr ence County
, Tenne ssee, and she continued to re side with L inda until her dea th on Aug ust 17, 2006.

Prior to moving to Tenne ssee, Mrs. Schisler liv ed on a 110-ac re family far m in Carroll County
, Maryland, which she and her late husband boug ht in 1958. The far m was the main source of income for Mr. and Mrs. Schisler, and they raised their six children on the far m. Daug hter, I ris, left t he family home i n 1967 and moved to Ge org ia with her husba nd. All four boy s continued to work the family far

m with their fathe r, mother, and sister, L inda, until Donnie moved to L awr ence County
, Tenne ssee in 1972. There afte r, Ralph beg an working awa y from the far

m. Mr. Schisler died in 1982. After his death, Mrs. Schisler and two of her sons, Fr eddie and Carroll, continued to work the fa rm. I n 1983, L inda moved to L awr ence County , Tenne ssee with her husband. 1

Mrs. Schisler, Fr eddie, and Carroll continued to w ork the far m toge ther until 2001 when a family meeting was called t o discuss ac cu s at i o n s t h at Freddie was s tealing from the far m. At the conclusion of the family meeting
, Fr eddie left the far m to live in Pennsy lvania. After Fr eddie left, only Mrs. Schis l er and Carroll rema ined to work the far m, and Carroll took char g e of all far ming
opera tions.

On J uly 9, 2001, Mrs. Schisler executed a revoc able family trust and a will. The family far m

was transfe rre d to the trust and beca me trust proper

ty

. The benefi ci ar i es o f the trust wer e Mrs. Schisler and five of her children, Carroll, Donnie, I ris, L inda, and Ralph. Mrs. Schisler, howeve r, 2 for as long as she lived, was to be the primary benef iciary of the income from the trust, wh ich consisted primarily

of the income from the f arming opera tion.

Pursuant to the trust , C ar roll had the exclusive rig ht to opera te the family far m, which aff orded him signific ant control over t h e i n co m e to be derive d by the trust from the far ming
opera tions. The trust fur

ther provide d that afte r Carr oll’s death, or once Carroll cea sed t o opera te the far m, Ralph had the rig ht to opera te the far m for life provided he continued to opera te the far m. I f and when Carroll and Ralph both died or cea sed opera ting the far m, the trust would terminate, in which event the trustees wer e to distribute the trust assets to the trust benef iciarie s – Mrs. Schisler, if she wa s s t i l l living, and the surviving children of Mrs. Schisler (excluding Fr eddie) or their desce ndants, per st irp es

. Al l other assets belong ing to Mrs. Schisler were to pass pursuant to her will, whi ch provided that her estate was to be divided equally among her six children, including Fr eddie, or

the desc endants of a

dece ased c hild.

A j o i n t f a r m a c c o u n t w a s s e t u p i n 1 9 8 2 b e t w e e n C a r r o l l
, F r e d d y , a n d M r s

. S c h i s l e r

. 1

F r e d d i e w a s e x p r e s s l y e x c l u d e d f r o m t h e t r u s t

. T h e t r u s t s t a t e d i n I t e m 1

. 5 t h a t F r e d d i e h a d a l r e a d y r e c e i v e d 2

“ m a c h i n e r y a n d o t h e r a s s e t s ” t h a t r e p r e s e n t e d h i s s h a r e o f t h e f a m i l y f a r m

. F r e d d i e w a s , h o w e v e r , a r e s i d u a r y b e n e f i c i a r y

o f t h e w i l l
, b u t t h e f

a m i l y f a r m d i d n o t p a s s p u r s u a n t t o t h e w i l l

.
-2-I n Dec ember 2004, Mrs. Schisler l ef t t h e famil y far

m in Mary

land beca

use of her deter iorating health and moved to T ennesse e to live with Donnie. Two months later, in F ebrua ry 3 2005, Mrs. Schisler suffe red a mini-stroke. There afte r, Mrs. Schisler contac ted the attorne y in Maryland who had draf

ted her trust and will in 2001. I n a letter to the attorney , Mrs. Schisler voiced

conce rns reg arding the trust and whether it was the proper method of insuring that Carroll would be able to far

m the land for as long as he desired. Her letter also provided that she s t i l l wa n t ed t he children, ex ce p t Fr eddie, to be able to vote on what to do with the proper ty if Carroll stopped far ming the la

nd.

On May 19, 2005, just prior to moving in with her daug hter, L inda, Mrs. Schisler traveled with L inda to Maryland to meet with the attorney

. L inda, Carroll, and L inda’s husband attended the meeting Mrs. Schisler had with her attorney

. At the time of this meetin g, M rs

. S chis ler’s estate consisted of the family far m, a one-f

ifth undivided interest in a parc el of rea l proper ty in Ba ltimore County
, Maryland (her einaf ter “Windsor Mill Road proper ty ”), a nd a six -ac re trac t a lso loc ated in Ba l t i more County (her einaf ter “Dog wood proper

ty ”). After consulting with the attorney , Mrs. Schisler made sever al amendments to the trust and her will. Notably
, she remove d the provision that
g ave Ralph the option to opera te the far m. She also cha n ged t h e desig nation of her persona l
repr esenta tives in her will by removing Ralph, Donnie, and I ris as her co-e x ecutor s and appointing Carroll and L inda instead. The family far m and a money

marke t acc ount remaine d in the trust.

I n the interim, tensions were building betwe en Carroll and Ralph conce rning the boundary that separ ated two adjac ent trac ts of land the two owned. The two trac ts, which wer e previously part of the family far

m, had been separ ately deede d to Carroll and Ralph by Mrs. Schisler in 1999. Mrs. Schisler beca

me awa re of the dispute betwee n Carroll and Ralph during a visit by Carroll in Aug ust of 2005, whe n Carroll trave led to Tenne ssee to see his mother.

On September 1, 2005, while Carroll was visiti ng Mrs. Schisler at L ind a’ s h o m e in Tenne ssee, Mrs. Schisler executed de eds conve y ing the family

far m a nd the Dog wood proper

ty to Carroll. The deeds wer e prepa red by Carroll’s g irlfriend. After the family far m and the Dog wood 4
proper ty wer e convey ed to Carroll, Mrs. Schisler’s modest estate only consisted of a $5,000 money marke t acc ount, her interest in the Wi n d s or Mill Road proper ty , and some tang ible persona l proper ty

.

I n Septem b er or October of 2005, L inda and Donnie g ot into an arg ument during which Donnie pushed L inda out of his house and told he r not to come ba ck. Mrs. Schisler w itnessed the incident. Also in October of 2005, Donnie took Mrs. Schisler’s money out of a lockbox Donnie and

M r s

. S c h i s l e r h a d t o b e t a k e n t o d i a l y s i s o f t e n , b e g a n s u f

f e r i n g f r o m v a r i o u s h e a r t p r o b l e m s , a n d h a d v e r y p o o r 3

e y e s i g h t

.

T h e d e e d s t o t h e f a m i l y f a r m a n d D o g w o o d p r o p e r t y e x e c u t e d o n S e p t e m b e r , 1
, 2 0 0 5
, f r o m M r s

. S c h i s l e r t o 4

C a r r o l l a r e t h e s u b j e c t m a t t e r o f a n u n d u e i n f l u e n c e l a w s u i t p e n d i n g i n M a r y l a n d

. C a r r o l l s o l d t h e D o g w o o d p r o p e r t y

o n F e b r u a r y 2 0
, 2 0 0 6
, f o r $ 8 5
, 0 0 0 ; h e r e t a i n e d o w n e r s h i p o f t h e f a r m i n M a r y l a n d
, w h i c h h a d a n e s t i m a t e d v a l u e o f

a p p r o x i m a t e l y $ 1 9 5
, 6 7 0

.
-3-his w ife share d with Mr s. Schisler. Mrs. Schisler beca me upset when she lear

ned that Donnie had taken the mone y . When she reque sted that he re turn the money to her, he promptly

complied.

I n November 2005, Mrs. Schisler and L inda went to mee t with a lawy er in L awr ence burg
, Tenne ssee to chang e h er wi l l and revoke the inter vivos revoc able trust. During the meeting
, she informed her attorney , inter alia
, that sh e s h ar ed a joint chec king acc ount with Carroll that she intended for

him to have. 5

On November 15, 2005, Mrs. Schisler and L inda returne d to the lawy er’ s office at which time Mrs. Schisler revoke d the trust, the only rema ining asset of which wa s the money marke t acc ount, and executed a will that revoke d her prior wills. M rs. Schisler also executed a Dura ble Power of Attorney on November 15, 2005, desig nating Carroll and L inda as co-a ttorney s-in-fa ct, and a Hea lth Care Power of Attorney
, in which she desig nated L inda as primary ag ent and Carroll as the alterna te ag ent. Mrs. Schisler also purcha sed a cer tificate of deposit in L inda’s name on November 15, 2005. 6

The November 15, 2005 will contained a specific bequest of her one-f ifth i n t er es t in the Winds or Mill Road proper ty to her six children. The will, howeve r, differ ed from the previous two wills in that no other proper ty was s p ec i fi cally bequeathed to any one, and the residuar y estate, meaning ever

y thing but the Winds or Mill Road proper ty , was bequeathed only to Carroll and L inda.

Following Mrs. Schisler’s death, Carroll and L inda filed a petition to admit t he Nove mber 1 5
, 2 0 0 5 wi l l to probate in common form. The will was admitt ed to probate in common form on October 31, 2006. Four day s later, on November 3, 2006, Carroll and L inda submitt ed a petition to probate the will in solemn form. On Dec ember 4, 2006, Mrs. Schisler’s other four children, Donnie, I ris, Ralph, and Fr eddie, filed a Complaint in the Probate Court of L awr ence County to contest the November 15, 2005 wil l al l egi ng that Carroll and L inda each had a confidential rela tionship with their mother and that they exercised undue influence to cause her to execute the November 15, 2005 will.

Prior to commence ment of the jury trial conce rning the validity of the November 15 will, Carroll filed a motion in limine to preve nt Plaintiffs from prese nting evidenc e conce rning Carroll’s conviction for actions conce rning the manner in which Carroll opera ted the family far m in Maryland and how he trea ted the far m animals, specific ally ag g rava ted crue lty to animals, abuse or neg lect of ani m al s , feeding g arba g e to swine, adultera ting or misbranding food, selling adultera ted or misbranded f

ood, discharg ing pollutants into water , and unlawfully disposing of over 500 pounds of litter. The trial court hear d arg uments perta ining to the motion out o f the prese nce of the jury

. Counsel for Carroll arg ued that the conviction was irrele vant and any probative value that could be

T h i s j o i n t c h e c k i n g a c c o u n t h a d f o r m e r l y b e e n u s e d a s t h e f a r m a c c o u n t s e t u p i n 1 9 8 2

. C a r r o l l a l s o d e p o s i t e d 5

M r s

. S c h i s l e r ’ s s o c i a l s e c u r i t y c h e c k s i n t o t h i s j o i n t c h e c k i n g a c c o u n t

.

B y N o v e m b e r 1 7
, 2 0 0 6
, t h e e s t i m a t e d v a l u e o f t h e C D w a s $ 1 0
, 3 4 1

. 2 2

. 6

-4-derive d from the admission of Carroll’s conviction was substantially outweig hed by the prejudicia l

eff ect it would have on the jury . Plaintiffs, on the ot her hand, arg ued that the convictions went to Carroll’s motive and intent to exercise undue influence over Mrs. Schisler, noting that due to his convictions reg arding far

m a nimals, he could not ope rate the far m in Mary

land if animals wer e on it. The trial court denied the motion, but rese rved the rig ht to g ive limit ing instructions to the jury

conce rning the limit ed rele vance of the convictions. There afte r, the case proce eded to a trial by jury

. During the cross examination of Carroll, counsel for Plaintiffs soug ht to admit into evidenc e

a rec ord of Carroll’s conviction. Although he did not make a formal objection to the admissibili ty of the conviction, counsel for Carroll expressed some conce rn with the admission of the conviction beca use Carroll still had time to appea l the conviction. The trial court admitted the conviction into evidenc e, but instructed the j u ry t h at t he conviction could only be considere d to deter mine the

cre dibilit y

of Carr oll, not the validity of the Nove mber 15, 2005 will.

At the conclusion of a four- day trial, the jury provided answe rs to seven interrog atories. The

answe rs to the four most re levant interr og atories a re a s follows:

3. Do y ou find that Carroll Schisler, Sr. had a confide ntial rela tionship with L ucille Annetta Schisler a

t the time of the execution of the Nove mber 15, 2005 Will?

Yes X No

4. Do y ou find that the November 15, 2005 Wil l is invalid be cause it wa s obtained throug h the undue influe nce of Carroll Schisler, Sr.?

Yes, invalid X No, valid

5. Do y ou find that L inda Stem had a confide ntial rela tionship with L ucille Annetta Schisler at the time of the execution of the Nove mber 15, 2005 Will?

Yes X No

6. Do y ou find that the Nove mber 15, 2005 Will is invalid beca use i t was obtained throug h the undue influe nce of L inda Stem?

Yes, invalid X No, valid

-5-Carroll and L inda fil ed a M o t i o n fo r a New Trial on J une 19, 2008, asser ting that the t rial
court err ed in admitting evidenc e conce rning Carroll’s convictions. They also arg ued that the verdic t

was contra

ry to the weig ht of the evidenc e, specific ally that there was no materia l evidenc e to support a finding that the November 15, 2005 will was obtained throug h the undue influence of Carroll or L inda, nor was there evidenc e of a confide ntial rela tionship with their mother, which would g ive rise to a presumption of undue i n fl u en ce

. Plaintiffs filed a Motion for Discre tionary Costs. Both motions wer e arg ued befor e the trial court afte r which the trial court denied the Motion for a New Trial and awa

rded Plaintiffs’ their discretionar y cost s , ex ce pt for the reque sted trave l expenses, which we re de nied. This appea l by Carroll Schisler a

nd L inda Stem followed.

A N A L Y S I S

Appellants prese nt two principal issues on appea l: whether the trial court err ed in admitting evidenc e perta ining to Carroll’s criminal conviction, and whether there is m at er ial evidenc e to support the jury ’s finding that t h e November 15, 2005 will was invalid beca use it was obtained throug h undue influenc e of Car roll Schisler and L inda Stem.

E V I D E N T I A R Y R

U L I N G S

Appellants alleg e that the trial court err ed in deny ing their pre- trial motion to exclude the criminal conviction of Carroll Schisler, and that it fur t h er err ed in admitting the appellate rec ord wher ein his conviction was aff irmed. A decision whether to admit or exclude evidenc e lies within the discretion of the trial court. See Y oung v. Hartley
, 152 S.W .3d 490 (Tenn. Ct. App. 2004) (citing Dicke y v. M cCord , 63 S.W .3d 714, 723 (Tenn. Ct. App. 2001)) (“Tr ial courts are acc orded a wide deg ree of latitude in their deter mination o f wh et h er to admit or exclude evidenc e, even if such evidenc e would be rele vant.”)

. Thus, this court revie ws such decisions under an abuse of discretion standard, w hich provides that

a trial court’s ruling “will be upheld so long as rea sonable minds c an disag ree as to the propriety of the decision made.” A trial court abuses its discretion only when it “applies an incorre ct l eg al s tandar d, or reache s a decision which is ag ainst logic or

rea soning or that cause s an injusti ce to the party complaining .” The abuse of discretion standard does not permit the appellate court to substitut e its judgme nt for that of the trial c ourt.

Eldridge v. Eldridge , 42 S.W .3d 82, 85 (Tenn. 2001) (citations omitted).

Appellants ar g ued at tria l that Carroll’s convic tions were ir rele vant and that the admission of such evidenc e was highly prejudicia l. Pur s u an t to Tenne ssee Rule of Evidence 401, rele vant evidenc e is “evide nce having any tendenc y to make the exis tence of any fac t that is of conseque nce to the deter

mination of the action more probable or less probable than it would be without the evidenc e.” Although normally admissible, rele vant evidenc e may be excluded “if its probative value is substantially outweig hed by the dang er of unfair prejudice
, confusion of the issues, or misleading

-6-the jury .” Tenn. R. Evid. 403. “The admissibili ty of evidenc e under Rule 403 of the Tenne ssee Rules

of Evidence is a matter within the trial court’s discretion and will not be reve rsed on appea l a bsent an abuse of that discre tion.” State v. Biggs , 218 S.W .3d 643, 667 (Tenn. Crim. App. 2006) (citing State v. Dubose , 953 S.W .2d 649, 652 (Tenn. 1997) ).

Evidence of “cr imes, wrong s, or acts is not admissible to prove the char acte r of a person in order to show action in confor mity with the char acte r trait. I t may , howeve r, be admissible for other purposes.” Tenn. R. Evid. 404(b). For example, such evidenc e may be rele vant to show motive or intent. Tenn. R. Evid. 404(b), Advisory Comm’n Commt

. Be fore the trial court may permit evidenc e of a pr ior crime, w rong , or ac t, the following proce dures must be met:

(1) The court upon re quest must hold a hear ing outside the jury ’s pre sence ; (2) The court must deter mine that a materia l issue ex i s t s o t h er than conduct confor ming with a char acte r trait and must upon reque st state on the rec ord, the materia l issue, the ruling , and the r easons f or admitting the evidenc e; (3) The court must find proof of the other crime, wrong , or act t o b e cl ear and convincing ; and (4) The court must e x clude the e vidence if its probative value is outwe ighe d by the dang er of unfair pr ejudice.

Tenn. R. Evid. 404(b). Assuming these proce d u re s are substantially followed, the trial court’s decision conce rning the admissibili ty of the contested evidenc e is aff orded g rea t defe renc e and will only be re verse d if the trial cour t abused its discretion. State v. Dubose , 953 S.W .2d at 652.

We h a v e d e te r mi n ed the trial court substantially followed the above proce dures. Spec if ic a ll y , the jury was not prese nt during the hear ing on the motion in limine. The fac t that Carroll was convicted of the crimes was not disputed, only the finality was discussed. The trial court made a specific finding to e x plain why the evidenc e was admissible a nd the limit ed purpose for which the jury could consider the evidenc e, that being motive and intent to influence his mother to make a new will and revoke her previous wills. I n balanc ing the probative value and the prejudicial eff ect, the trial court state d:

I cer tainly find that it’s rele vant. I cer tainly see a dang er for unfair prejudice

. But it sounds like, at least, from [t ]he Court’s exposure to it thus far
, that it may be highly probative on what was happening in 2005 with reg ard to deeds, wills, revoc ation of trust, and other a ctions on behalf of the dec edent in this case

.

At trial, counsel for Carroll was the first to question Carroll conce rning his convictions and his opera tion of the family far m. This was done during the direc t examination of Carroll. On crossexamination, Plaintiff’s counsel introduced the Opinion o f the Court of Special Appea ls of Maryland that aff irmed hi s convictions. The following is an ex cer pt of t he dialogue among counsel and the court that e nsued:

-7-Mr. Holt: I would like to make this from the Mary land Special Appe als the next ex hibit, Your Honor.

The Court: Any objection?

Mr. Doer fling er: My understanding
, in Mary land i t ’s not an enrolled opinion
y et. Ther e’s possibility

of taking a ce rtiorar i.

The Court: I ’m g oing to mark it, but let me tell the ladies and g entlemen

of the jury
, usuall y p ri o r convictions in a case like this is rele vant only if it go es to the cre dibilit y of the witness. I n Tenne ssee l aw, if it was for theft or fra ud or other ty

pes of dishonesty
, it would clea rly g o to cre dibilit y beca use

. . . dishonest people might lie. Disputes over environmenta l and animal manag ement issues mig ht not go to cr edibility

. . . .

Mr. Holt: There is one count of misbranding or mislabeling food, Your

honor.

Mr. Doer fling er: But ther e’s no–

The Court: I ’m also conce rned there is not a final conviction. This will

be marke d and admitted as Ex hibit 36. I n other words, if it has any rele vance at all i n t h i s case , it can only g o to this witness’s cre dibilit y and not influence direc tly the validity or invalidity of the Nove mber, 2005, will.

The trial court ruled that Carro l l ’s co n viction was admissible beca use it was rele vant to whether Carroll had a motive or intent to inf l uence his mother. As the trial court explained, any 7 evidenc e of Carroll’s motive in asser ting undue influence “would at least be circ umstantial evidenc e of specific intent

. . . [and] any t h i n g t h at m ay be direc t or circ umstantial evidenc e of Carroll Schisler’s intent is releva nt, and ce rtainly

if any of that was be ing c ommunicated to the testator or testatrix, it may have been influential to her in some way , and there fore
, be admissible.” I n making this ruling the trial court corr ectly relied on In re Estate of Depriest
, 733 S.W .2d 74 (Tenn. Ct. App. 1986), in which thi s court discussed the s ignif icanc e of the s tate of mind of t he person acc used of wielding u n d u e influence over another

. I n our analy sis, we rec og nized that while motive has no

T h e r e l e v a n c e o f C a r r o l l ’ s c o n v i c t i o n s f o r a g g r a v a t e d c r u e l t y t o a n i m a l s , a b u s e o r n e g l e c t o f a n i m a l s , f e e d i n g 7

g a r b a g e t o s w i n e , a d u l t e r a t i n g o r m i s b r a n d i n g f o o d
, s e l l i n g a d u l t e r a t e d o r m i s b r a n d e d f o o d
, d i s c h a r g i n g p o l l u t a n t s i n t o

w a t e r , a n d u n l a w f

u l l y d i s p o s i n g o f o v e r 5 0 0 p o u n d s o f l i t t e r a r o s e f r o m t h e f

a c t t h a t u n d e r M a r y l a n d l a w C a r r o l l m a y h a v e b e e n p r o h i b i t e d f

r o m r u n n i n g a f

a r m i n g o p e r a t i o n o r h e m a y h a v e b e e n s u b s t a n t i a l l y r e s t r i c t e d i n t h e t y p e o f f a r m i n g h e w o u l d b e p e r m i t t e d t o o p e r a t e , w h i c h m a y h a v e r e n d e r e d i t f i n a n c i a l l y i m p r a c t i c a l f o r C a r r o l l t o m a i n t a i n a f a r m i n g

o p e r a t i o n o n t h e t r u s t p r o p e r t y i n M a r y l a n d

. T h e t r u s t p r o v i d e d t h a t o n c e C a r r o l l “ c e a s e d t o o p e r a t e t h e f a r m , ” R a l p h h a d t h e r i g h t t o o p e r a t e t h e f a r m

. A s a c o n s e q u e n c e , C a r r o l l r a n t h e r i s k o f f o r f e i t i n g h i s r i g h t t o o p e r a t e t h e f a r m

.
-8-bear ing, “undue influence does require a specific intent to subject the mind of the testator to the

influence and direc tion of the person exercising the influence .” Id. at 78. “[W ]i th respe ct to undue influence s h o wn by direc t proof without the aid of the presumption [arising from a confide ntial rela tionship]

. . . the proof must show an intent by the dominant person to impose his or her will on the person being influence d.” Id. We there fore aff irm the trial court’s ruling that the evidenc e was admissible for the limited purpose de scribed by the trial cour

t.

M A T E R I A L E V I D E N C E T O S U P P O R T J U R Y F I N D I N G S

The jury found that Carroll and L inda both had a confide ntial rela tionship with Mrs. Schisler when the will was executed on November 15, 2005, and that the will was invalid beca use it was obtained throug h the undue influence of Carroll and L inda. Finding s of fac t by a jury in civil actions shall be set aside only if “ther e is n o m at eria l evidenc e to support the verdic t.” Tenn. R. App. P. 13(d).

I n revie wing the evidenc e prese nted to a jury
, the appellate court may not weig h the evidenc e

or make our own cre dibilit y deter minations. Rey nolds v. Ozark Motor Lines, Inc.
, 887 S.W .2d 822, 823 (Tenn. 1 9 9 4 ) (ot her citations omitted). We must take the strong est leg itimate view of the evidenc e that favor s the verdic t, disreg ard all contra ry evidenc e, and allow all rea sonable infere nces to sustain the verdict. Barnes v. Goodye ar Tire & Rubber C o

. , 48 S.W .3d 698, 704 (Tenn. 2000). When a rec ord contains materia l evidenc e supporting a verdic t, the judgme nt based on that verdic t will not be disturbed on appea l. Alexande r, 24 S.W .3d at 273-74 (Tenn. 2000) (citing Rey nolds
, 887 S.W .2d at 823; Tenn. R. App. P. 13(d))

. On l y i f we deter mine that the rec ord does not contain materia l evidenc e to support the jury ’s verdic t can we set the judgme nt aside. Turner v. Jordan
, 957 S.W .2d 815, 824 (Tenn. 1997); Jack son v. P a t t o n , 952 S.W .2d 404, 405 (Tenn. 1997); Next Gene ration, Inc. v. W

al-Mart, Inc. , 49 S.W .3d 860, 863 (Tenn. Ct. App. 2000).

C O N F I D E N T I A L R E L A T I O N S H I P

The jury found that both Carroll and L inda had a confide ntial rela tionship with Mrs. Schisler. A confide ntial rela tionship is one that g ives one person dominion and control over anoth e r

. Ch il dress

v. Currie
, 74 S.W .3d 324, 328 (Tenn. 2002) (citing Matlock v. Simpson
, 902 S.W .2d 384, 386 (Tenn. 1995). “The re are two source s o f s u ch co nfidential rela tionships: (1) ‘leg al confide ntial rela tionships’ and (2) ‘fa mily and other rela tionships.’” In re Estate of B revard
, 213 S.W .3d 298, 8 302 (Tenn. Ct. App. 2006) (citing Matlock
, 902 S.W .2d at 385-86)

. Ty pical familial rela

tionships

are not confide ntial rela tionships per se unless there is specific evidenc e of domination and control

L e g a l c o n f

i d e n t i a l r e l a t i o n s h i p s a r e f i d u c i a r y r e l a t i o n s h i p s b y n a t u r e a n d a r e c o n f i d e n t i a l p e r s e b e c a u s e o f 8

t h e s t a t u s o f t h e p a r t i e s

. K e l l e y v

. J o h n s , 9 6 S

. W

. 3 d 1 8 9
, 1 9 5 ( T e n n

. C t

. A p p

. 2 0 0 2 )

.

-9-of one famil y member over the other. Brevard
, 213 S.W .3d at 303 (citing Kelley v. Johns
, 96 9 S.W .3d 189, 197 (Tenn. Ct. App. 2002))

.

There is materia l ev i dence to support the jury ’s finding s that Carroll and L inda had a confide ntial rela

tionship with Mrs. Schisler g iven the deg ree of dominion and control both had over their mother. Mrs. Schisler was pa rtially incapa citated a

nd living with L inda and de pendent upon L inda during the last y ear of her life. Specifica lly
, she depende d on L inda to car e for her, to fee d her,
t o h ouse her, and to transport her. As for Carroll, the confide ntial rela tionship arose out of their financ ial dealing s and the fac t that Mrs. Schisler was financ ially depende nt on Carroll. Ever since her husband died in 1982, Mrs. Schisler had a joint acc ount with Carroll, her social secur ity chec ks

wer e deposited into the j oint acc ount with Carroll, t h e income from Carroll’s farming opera tions, which wa s Mrs. Schisler’s only income but for he r social se curity benef its, was deposited i nto the joint acc ount, and Carroll was in complete control of the funds in that acc ount and how they would be dis perse d. T h e scope and ex tent of a person’ s financ ial depende nce on another is rele vant and materia l to the issue of whether a confide ntial rela tionship exis ts, and there is materia l e vidence in the rec ord to support the finding that Mrs. Schisler was very depende nt on Carroll for her financ ial well-be ing.

We, there fore
, conclude that the rec ord contains materia l evidenc e supporti n g t h e j u ry ’s finding s that both Carroll and L inda had a confide ntial relationship with Mrs. Schisler.

U N D U E I N F L U E N C E

The jury also held that both Carroll and L inda had a confide ntial rela tionship with Mrs. Schisle r. Proof of a confidential rela tionship is not, by itself, sufficie nt to make out a prima fac ie claim of undue influence. Kelley
, 96 S.W .3d at 198. Contestants must also show the ex istence of other suspicious circumstanc es that would show that the Nove mber 15, 2005 will wa s not e ntirely Mrs. Schisler’s fre e and independe nt act. See id. Suspicious circ umstances of undue influence often include:

(1) the exis tence of a confide ntial rela tionship betwee n the testator and benef iciary ; (2) the te stator’s phy sical or menta l deterioration; (3) the be nefic iary ’s ac tive involvement in procuring the will; (4) se cre cy

conce rning the will’s exis tence ; (5) the te stator’s adva

nced a g e; (6) the la ck of inde pendent a dvice in pre paring the will; (7) the te stator’s illiterac y or blindness; (8) the unjust or unna tural nature of the will’s terms; (9) the te stator being in an emotionally distraug ht state;

A n u n r e s t r i c t e d p o w e r o f a t t o r n e y c r e a t e s a c o n f i d e n t i a l r e l a t i o n s h i p b e t w e e n t h e p a r t i e s

. M a t l o c k
, 9 0 2 S

. W

. 2 d 9

a t 3 8 6

. H o w e v e r , a n u n e x e r c i s e d p o w e r o f a t t o r n e y d o e s n o t i n a n d o f i t s e l f c r e a t e a c o n f i d e n t i a l r e l a t i o n s h i p

. C h i l d r e s s , 7 4 S

. W

. 3 d a t 3 2 9

.
-10-(10) discr epanc ies betwe en the will and the te stator’s expressed intentions; and

(11) f raud or duress dire cted towa

rd the testator

.

Id . at 196.

The exis tence of a confide ntial rela tionship, toge ther with a transac tion by whi ch t h e dominant party obtains a benefit from the other party or anothe r suspicious circ umstance, trig g ers

a presumption of undue influence

. Roberts v. Chase
, 166 S.W .2d 6 4 1
, 6 5 0

- 5 1 (Tenn. Ct. App. 1942). This pre s u m p t i o n can only be rebutted by clea r and convincing evidenc e of the fairne ss of the
transac tion. Richmond v . Christ ian , 555 S.W .2d 105, 107 (Tenn. 1977) . The diff iculty in proving the fairne ss of a transac tion varie s depending on the circ umstances of a par t i cu l ar case and the streng th of the presumption of undue influence

. Id

. at 108. A lack of suspicious circ umstances can rebut the presumption. Parish v. Kemp
, No. M2008-02430-COA- R3-CV, 2009 WL 3074620, at *6 (Tenn. Ct. App. Dec

. 11, 2008) (citing S i mm o n s v. F oster , 622 S.W .2d 838, 841 (Tenn. Ct. App. 1981)).

The evidenc e submitt ed by the contestants establishes at least five suspicious circ umstances bey ond the exis tence of the confide ntial rela tionship. First, there is materia l evidenc e in the rec ord that Mrs. Schisler’s mental and phy sical health had deter iorated, due in part to the stroke she suffe red in 2005, and that both of them play ed an active role in procur ing the November 15, 2005 will and

1 0 the revoc ation of the family trust. Moreove r, both of them acc ompanied Mrs. Schisler to the meeting with the Maryland lawy er in 2005, when Mrs

. S ch isler made substantial chang es to her estate planning that specific ally benef itted Carroll and L inda. Fur ther, Carroll (and his g irlfriend) assisted Mrs. Schisler by prepa

ring the deeds to convey the family far m and the Dog wood proper ty to Carroll, and Carroll drove his mother to the courthouse to have the deeds executed and notarized. The rec ord also reve als that during the time period rele vant to the issues, a host of disturbing events had arisen within the family that cause d Mrs. Schisler to be emotionally distraug ht. Some of the more rele vant events we re suc cinctly

stated by the trial cour

t during the Motion for Ne w Trial he aring :

She was made to believe that Ralph was encr oaching on the far m with the fenc e; and that Donnie was stealing her mon ey

. . . . This Court is cer tainly comforta

ble in letting the will c ontest come out as it did in this Tenne ssee court; and let the parties then litigate in Maryland the validity of the deeds.

. . . The case did

. . . at least subject the jury and [t ]he Court to a lot of alleg ed misconduct by the various children

or sibl i n gs

. T h o s e disputes wer e oftentimes known by the testatrix. And if she

acc epted the wrong person’ s spin on those dis p u t es , i t could have influence d her making of her

will and these de eds.

W e also note t hat M rs. S chisler was not aff orded the benef

it of i ndepende nt advice d u e t o the fac t that either Carroll or L inda wer e prese nt whene ver Mrs. Schisler soug ht the assistance of an

F o l l o w i n g h e r s t r o k e , M r s

. S c h i s l e r h a d v e r y l i m i t e d v i s i o n a n d a h o s t o f m e d i c a l p r o b l e m s d u r i n g t h e l a s t 1 0

c o u p l e y e a r s o f h e r l i f

e

.
-11-attorney

. When it is difficult to deter mine the fairne ss of a transac tion, independe nt advice may be sufficie nt to overc ome the presumption of undue influence

. Richmond
, 555 S.W .2d at 107-08. As the Tenne ssee Supreme Court explained in Turner v. Leathers
, “indepe ndent advice means that the adviser must not only be competent but independe nt.” 232 S.W .2d 269, 271 (Tenn. 1950). I n other word s , t h e ad v i s er must be so disassociated from the interests of the intended donee as to be in a position to advise the donor impartially and confide ntly as to the conseque nces of the intended g ift. Id. Her e, the evidenc e fully supports a finding that the advice Mrs. Schisler rec ei v ed from the L awr ence burg attorney

was not indepe ndent g iven the ac tive roles Carr oll and L inda play ed.

We, there fore
, conclude that the rec ord contains materia l evidenc e su p p o rt i n g the jury ’s finding s that both Carroll Schisler and L inda Stem had a confide ntial rela tionship with Mrs. Schisler, that they did not overc ome the presumption that the will was obtained throug h the undue influence of Carr oll Schisl er a

nd L inda Stem and, there fore , the Novembe r 15, 2005 will was invalid.

I N C O N C L U S I O N

The judgment of the t rial cour t is affirmed in a ll respec ts and this matter is rema nded with costs of appe al assesse d ag ainst Appellants, Carr oll L y nn Schisler, Sr. and L inda L ou Stem.

___________________________________ FRANK G. CL EMENT, JR ., J UDGE

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