### IN THE SUPREME COURT OF TENNESSEE AT JACKSON November 14, 2001 S ession BILLY JOE CHILDRESS v. NATASHA BARNES CURRIE, ET AL 

### .

Appeal by Permission

from the Court of

Appeals Circuit Court for Lauderdale County No. 5029 Joseph H. Walker, Judge

No. W1999-00471-SC-R11-CV - Filed May 3, 2002

The issue presented i

n this case is wheth

er a confidentia

l relati onship arises as a matter of law when an unrestricted power of attorney is executed but

not exercised. The trial court held that
a confidential re

lationship existed a

nd that the resultin

g presumption of und

ue influence co

uld only be rebutted by pr

oof of independe

nt advice to the de

cedent. Because

there was no such

proof, the trial court set aside the jury’s verdict and found that the will was invalid.

On appeal, the Court of Appeals concluded that since the attorney-in-fact was unaware of the power of attorney at the

time the deceden

t executed her w

ill, there was not a

confidential re

lationship betweenthe attorney-in-

fact and the dec

edent and, th

erefor e, no presumption of undue influence. After a thorough review o f the record and the relevant authority, we hold that a confidential relationship

does not arise as a matter of law when an u nrestricted power of attorney is executed without being exercised. Accordingly, the judgment of the Court of Appeals is affirmed. Tenn. R. App. P. 11 Appea l by Permission; Judgm ent of the Court o

f Appeals Affirme

d

E. R ILEY A NDERSON , J., delivered the opinion of the court, in which F RANK F. D ROWOTA , III, C.J., and A DOLPHO A. B IRCH , J R ., J ANICE M. H OLDER and W ILLIAM M. B ARKER , JJ., joined.
J. Thomas Caldwell,

Ripley, Tennessee

, for the appella

nt, Billy Joe Childres s.
Charles W. Fowler and

Adam F. Glankler, Memphis, Tennessee, for the appellee, Natasha Barnes Currie.
OPINION
BACKGROUND1 Ms. Cu rrie is the gran ddaug hter of M s. Elizabeth Barnes, th e deced ent’s secon d cousin

. 2 Frank C urrie is the un cle of M s. Currie’s fo rmer hu sband.
-2- This case involves a will contest. Virginia Mary Leonard (“the decedent”) executed a will
on February 16, 1994, leaving her entire estate to the appellant, Billy Joe Childress, who was a friend and former employer. On May 22, 1997, the decedent, then age 78, executed another will, leaving her entire estate to the appellee, Natasha Barnes Currie, the decedent’s cousin. 1 The decedent was a widow and had no children. The evidence in the record is summarized below.

In April of 1997, Natasha Currie beganliving with her elderly cousin, Virginia Leonard, on
a part-time basis. Currie helped her cousin care for herself and her home. By May of

1997, Currie
was living with and assisting Leonard on a full-time basis whi le Leonard was afflicted w ith incontinence, insomnia, and anxiety.

On May 5, 1997, Leonard asked Currie to drive her and Elizabe

th Barnes, her second cousin, to the Bank of

Ripley where Leonard owned a certificate of deposit totaling approximately $8,500. While at the bank, Leonard withdrew approximately $4,400 from the certificate of depos it an d placed the remainder – approximately $4,100 – in a certificate of deposit in her name and the name of Elizabeth Barnes.

Currie testified that Leonard withdr ew the $4,40 0 to pay the deposit on a pre-arranged funeral policy, to pay property taxes for 1994, and to pay for cleaning supplies and clothing. With t he exception of the $2,200 later p aid as a depo sit on the funeral policy, the record is silent as to the amount of any other expenses and the balance remaining from the $4,400.

On May 22, 1997, Leonard asked Currie to drive her and Elizabeth Barnes to Currie’s Funeral Home so that she could purchase a pre-arranged funeral plan. As Currie and Barnes waited outside the office, the decedent purchased the plan from Frank Currie. 2 After purchasing the funeral plan, she a s ked Frank Currie t o draft a power o

f attorney in fav

or of Natasha Cur

rie and a will leaving her entire estate to Currie. Frank Currie, who had known Leonar

d for several ye

ars, testified that she acted as hehad always known her to act, strong-willed. He also testified that she paid for the funeral plan herself and stated that she wanted to get her business affairs in order.

Al though not an attorney, Frank Currie agreed to draft the documents. L eonard the n executed both a p

ower of attorne

y to Natasha Curri

e and a will, which

stated in part as f

ollows:

. . . I, Virginia M. Leona rd , of Lauderdale County, State of Tennessee, City of Ripley, the undersigned hereby declare and appoint Natasha Barnes Currie the right to handle any and all of my business and to live with me. A t the time of my death, Natasha Barnes Currie will have all of my possessions.-3-

Natasha Curr ie was not present when Leonard signed the documents; however, Elizabeth Barnes witnessed the decedent’s execution of the will. Currie testif

ied that she did

not find out about the power of attorney and

the will until

after everyone had left the funeral home. On May 23, 1997, the day after the docume

nts were execut

ed, Ms. Currie recorded the power of attorney in the Register’s Office of Lauderdale County.

Natasha Currie testified that in the early part of June 1997, Leonard

asked that she withdraw the money from the joint certificate of deposit with Barne s in order to pay the balance on the decedent’s funeral plan – approximatel y $3,200 – before sh e went into the hosp

ital. Currie also closed two of the decede

nt’s bank accoun

ts, totaling approx

imately $700. When asked where the remainder of Leonard’s money was spent, Currie could not recall.

The record reflects that

the decedent was seen by her treating physician, Dr. Luis Wong, on April3, 1997; May 5, 1997; and June 10, 1997. On June 10, 1997, she was admitted to Baptist Memorial Hospital in

Ripley, Tennessee. The admitting diagnosis indicated that Leonard suffered from coronary artery disease, osteoarthritis, chroni c organic brain d isease, and chr

onic senile dementia. She was transferred later to the geriatric/psychiatric unit of the Baptist Memorial Hospital and treated

by Dr. Louis Wells, a psychiatrist. Dr. Wells testified that Leonard was admitted to the hospital because she wa

s v ery paranoid and threatened to harm herself. Dr. Wells and his staff agreed that Leonard was

paranoid, with som

e dementia and sho

rt-term me

mory lo ss. The doctor stated that

on occasion Leonard

was belligerent, hostile, and very paranoid, and that he prescribed medication for her. On July 3, 1997, Leonard’s condition impr oved, an d she was transferred to a nursing home. She died on July 19th, sixteen days after entering the nursing home.

On July 31, 1997, Leonard’s February 1994 will was admitted to probate in the Lauderdal

e County P r obate Court, naming the appellant, Billy Joe Childress, as the sole beneficiary. In September

of 1997, Natasha

Currie filed a petition contesting the February 1994 will and offering Leonard’s May 1997 will for pr obate, which name

d Currie as the sole

be neficiary. Childr

ess responded

that Leonard did not have testamentary capacity to execute the May 1997 will, and that she signed the will as a result of undue influence. In November of 1997, the probate court rejected the February 1994 will and admitted Leonard’s May 1997 will to probate.

At the request of bot

h parties, the will

contest was trans

ferred to the La

uderdale County Circuit C ourt for a jury trial. The jury returned a verdict upholding the validity of the May 199 7 will, but the trial court granted a motion for a directed verdict setting aside the jury’s finding that the decedent,Leonard, had not been unduly influenced. The trial court found that there w as a presumption of undue influencebecause there was a confidential relationship, and that Leonard had notreceived independent

advice prior to executing her May 1997 will that would have rebutted the presumption of undue influence and shown the fairness of the transaction.

On appeal, the Court

of Appeals

concluded that since Currie was unaware of the power of attorne y at the time Leonard executed her will, there was not a confidential relationship betwe e n Currie and Leonard. Moreo v er, the court concluded that since there was not a confidential-4-

relationship

present, there was no presumption of undue influence and that Currie was not required to prove the fairness of the transaction by clear and convincing evidence. We granted permission to appeal.

STANDARD OF REVIEW

A directed verdic

t is appropriate in

a willcontest case

only when the

evidence in the c

ase is susceptible

to butone conclusion. See Eaton v. McLa in , 891 S.W.2d 587, 590 (Tenn. 1994). An appellate court must take the strongest legitimate view of the evidence favoring the opponent of the motion when called upon to determine whether a trial court should have granted a dire cted verdict. Id. Furthermore, a

ll reasonable inferences in favor of the opponent of the motion must be allowed and a ll evidence contrary to the opponent’s position must be disregarded. Id. Ultimately , a n appellate court “may grant the motion

only if, after assessing the evidence accor ding to the foregoing standards,it determines that reasonable minds

c o uld not differ as to the conclusions to be drawn from the evidence.” Id. (citations omitted).
ANALYSIS

In a will contest, a properly executed will may be challenged

on a theory that the decedent’s mind was not “sufficiently sound to enable him or her to know and understan d the force and consequenceof the act of making the will” at the time the will was executed. In re Estate of Elam , 738 S.W.2d 169, 171-72 (Tenn. 1987). As this Court has said:

The testator must

have an intellige

nt consciousness

of the nature and effect of the a ct, a kno wledge of the property possessed and an unders t anding of the disposition to be made. While evidence regarding factors such as physical weakness or disease, old age, blunt perception or

failing mind and memory is admissible on the issue of testamentary capacity, it is not conclusive and the testator is not thereb y rendered incomp etent if her mind is

sufficiently soun

d to enable her to know and understand what she is doing.

Id. (citations omitted). Similarly, a will may be challenged on the basis that the decedent was subject to the undue influence of another

in executing the will. In Tennessee, for example, where there is a “confidential relationship, followed by a transaction wh erein the dominan

t party receives a benefit from the other party, a presumpt

ion of undue influe

nce arises,

that may be rebutted only by clear and convincing evidence of the fairness of the transaction.” Matlock v. Simpson , 902 S.W.2d 384, 386 (Tenn. 1995) (citations omitted). A confidential re lationship is any relationship

which gives one person dominion and control over another. See Mitchell v. Smith , 779 S.W.2d 384, 389 (Tenn. Ct. App. 1989).-5-

The burden of proof regarding a confidential relationship rests upon the party claiming the existence of such a relationship. See Brown v. Weik , 725 S.W.2d 938, 945 (Tenn. Ct. App. 1983). Once a confidential relationship has been shown and a presumption of undue influence arises, the burden s hifts to t he dominant party to rebut the presumption by proving the fairness of the transaction by clear and convincing evidence. Matlock v. Simpson , 902 S.W.2d at 386; see Gordon
v. Thornton , 584 S.W.2d 655, 658 (Tenn. Ct. App. 1979). To prove thefairness of the transaction, the dominant party may show that the weaker party rec eived independent advice before engaging in the transaction that benefitted the dominant party. See Hogan v. Cooper , 619 S.W.2d 516, 519 (Tenn. 1981); see also Richmond v. Christian , 555 S.W.2d 105, 107-08 (Tenn. 1977) (proof that the donor re ceived independ ent advice respe

cting the consequ

ences and advisa

bility of the gift) (citations omitted).

This Court has held that a confidential relationship arises as a matter of law when an unrestricted

power of attorney is granted to the dominant party. Matlock v. Simpson , 902 S.W.2d at 386 (citing Mitchell v. Smith , 779 S.W.2d at 389) . In that case, the decedent e

xecuted a n unrestricted

power of attorne

y, which gave his

attorney full auth

ority to handle his business affairs, and a will, which left all of his property to his attorney except for a few personal items. 902 S.W.2d at 385. Boththe power of atto rney and the will w

ere drafted by t

he decedent’s a

ttorney on the same day. Id. This Court therefore concluded that the trial court erred by failing to charge the jury that
a confidential relationship existed as a matter of law based on both the attorney-clien

t relationship and the grant of

an unrestricted power

of attorney, and that the presumption of undue influence had to be rebutted with clear and convincing evidence. Id. at 386.

The Court in Matlock

cited Mitchell v. Smith , 779 S.W.2d 384 (Tenn. Ct. App. 1989), for the proposition that an unrestricted p ower of attorney, in and of itself, creates a confidential relationship

between the parties. Matlock , 902 S.W.2d at 386. In Mitchell , the decedent, Willie A. Bush, granted anunrestricted pow er of attorney to

his niece, Debra

Gloria Banks Smith. Mitchell , 779 S.W.2d at 386-87. Mr. Bush was living w ith and being care

d for by Mrs. Smith an

d her parents. Id. at 386. Mr. Bush signed his will and the power of attorney in Mrs. Smith’s van at the attorney’s office, selected by Mrs. Smith, because Mr. Bush was too weak to enter the office. Id. at 387. Mr. Bush’s will named Mrs. Smith a s executrix and n

ame d her as a

beneficiary. Id. At Mr. Bush’s request, Mrs. Smith placed his will in her safe-deposit box

. Id. Mr. Bush and Mrs. Smith signed
new signature cards gi vi ng Mrs. Smith access to Mr. Bush’s bank accounts. Id. Mr. Bush maintained possession of h is bank books, and Mrs. Smith did not write checks without prior discussion with Mr. Bush. Id. Before Mr. Bush’s death, Mrs. Smith

used Mr. Bush’s funds to pay for his will, his funeral, and groceries. Id. Testimony showed th at Mr. Bush

may have executed the power of attorney as early as April 29, 1986, and he signed his will on May 12, 1986. Id. at 387-89. The C ourt of Appeals therefore held that there was evidence that Mrs. Smith had a conf identia l relationship

with her uncle before he executed his will and affi rm ed the trial court’s denial of a directed verdict on the issue. Id.

The issue of undue influenceshould “be decided by the application of sound principles and good sense to the facts of each case.” Id. at 388 (quoting Halle v. Summerfie ld , 199 Tenn. 445, 454,3 Because it had been instructed on the presumption of undu e influence, the jury also found that the

presumption had been rebutted by clear and convinci ng evidence.
-6- 287 S.W.2d 57, 61 (1956)). A careful reading of Matlock and Mitchell

shows that an unexercised power of attorney does n

ot in and of itself

create a confidential relationship and we clarify Matlock to the extent it suggests otherwise. The core definition of a confidential relationship requires proof of dominion and control. Matlock , 902 S.W.2d at 385- 86; Mitchell , 779 S.W.2d 384 at 389. When
an unrestricted power of attorney is executed but has not yet

been exercised, good sense dictates that there exists no dominion and control and therefore no confidential relationship based solely on the existence of the power of attorney. In Matlock , there was additional evidence of dominion and control based upon the attorney-client relationship and the personal execution by the attorney of the will and the power of attorney. Matlo ck , 902 S.W. 2d at 385-86. In Mitchell , the niece acted as caretaker to her ailing uncle, chose an attorney for him, drove her uncle to the attorney’s office where he signed the po we r of attorney and will in her van, and began exercising her power of attorney before her uncle’s death. Mitchell , 779 S.W.2d at 386-87.

We conclude that this

case is distinguish

able from Matlock v. Simpson and Mitchell v. Smith

. The record reveals that Virginia Leonard asked Natasha Currie to drive her and Eliz abeth Barnes to Currie’s Funeral Home so that the decedent co

uldpurchase a pre-arranged funeral plan. Once at the funeral home, Currie and Barnes waited outside the office while Leonard purchased the plan. After purchasing the plan, the decedent requested that Frank Currie draft a power of attorney in favor of Natasha Currie and a will making her the sole beneficiary.

Unlike Matlock , Natasha

Currie did not personally execute the documents on the decedent’s behalf. Indeed, she was not present when the power of attorney and w

ill were execute

d and she did notlearn of the instruments until after everyone had left the fu neral home. Mor eover, there is no eviden ce that she knew of th e decedent’s int

entions at any point

before the docu

ments wer e executed. In short, there is no basis for finding that a confiden tial relationship gave rise to a presumption of undue influence under the facts of this case. Indeed, the jury in this case determined that the decedent’s May 1997 will was valid and that the decedent was not under undue influence at the time of the execution of the power of attorney. 3

In short, the trial court’s decision to set aside the jury’s verdict was based on its erroneous interpretation of Matlock

. Although we in no way alter the holding expressed in Matlock , we simply hold that it was not applicable under the facts of this case. We therefore conclude that the trial court erred in setting a

side the jury’s ve

rdict and direct

ing a verdict in fa

vor of Childress.
CONCLUSION

We hold that a confidential relationship does not arise, as a matter of law , when an unrestricted

power of attorney is executed but is not exercised. Therefore, the judgment of

the Court-7-

of Appeals is affirmed. Costs of the appeal are assessed to the appellant, Billy Joe Child ress, for which execution may issue if necessary.

___________________________________ E. RILEY ANDERSON

, JUSTICE