IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 14, 2001 Session

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 in this case is whether a confidential relationship arises as a matter of

law when an unrestricted power of attorney is executed but not exercised. The trial court held that

a confidential relationship existed and that the resulting presumption of undue influence could only

be rebutted by proof of independent advice to the decedent. 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 decedent executed her will, there was not a confidential relationship

between the attorney-in-fact and the decedent and, therefore, no presumption of undue influence.

After a thorough review of the record and the relevant authority, we hold that a confidential

relationship does not arise as a matter of law when an unrestricted power of attorney is executed

without being exercised. Accordingly, the judgment of the Court of Appeals is affirmed. 

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed 

E. RILEY ANDERSON,J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J.,

and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined.

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Billy Joe Childress.

Charles W. Fowler and Adam F. Glankler, Memphis, Tennessee, for the appellee, Natasha Barnes

Currie.

OPINION

BACKGROUND
1 Ms. Cu rrie is the gran ddaug hter of M s. Elizabeth Barnes, th e deced ent’s secon d cousin . 

2

Frank Currie is the un cle of M s. Currie’s fo rmer hu sband. 

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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 began living 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 while Leonard was afflicted with

incontinence, insomnia, and anxiety. 

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

placed the remainder – approximately $4,100 – in a certificate of deposit in her name and the name

of Elizabeth Barnes. 

Currie testified that Leonard withdrewthe $4,400 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 the

exception of the $2,200 later paid as a deposit 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 asked Frank Currie to draft a power of attorney in favor of Natasha Currie and a will

leaving her entire estate to Currie. Frank Currie, who had known Leonard for several years, testified

that she acted as he had 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. 

Although not an attorney, Frank Currie agreed to draft the documents. Leonard then

executed both a power of attorney to Natasha Currie and a will, which stated in part as follows: 

. . . I, Virginia M. Leonard, 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. At the time of my death, Natasha

Barnes Currie will have all of my possessions. 
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Natasha Currie was not present when Leonard signed the documents; however, Elizabeth Barnes

witnessed the decedent’s execution of the will. Currie testified 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 documents were executed, 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 Barnes in order to pay the balance on the

decedent’s funeral plan – approximately $3,200 – before she went into the hospital. Currie also

closed two of the decedent’s bank accounts, totaling approximately $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

April 3, 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, chronic organic brain disease, and chronic 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 was very paranoid and threatened to harm herself. Dr. Wells and his staff

agreed that Leonard was paranoid, with some dementia and short-term memory loss. 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 improved, and 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 Lauderdale

County Probate 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 probate, which named Currie as the sole beneficiary. Childress

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 both parties, the will contest was transferred to the Lauderdale County

Circuit Court for a jury trial. The jury returned a verdict upholding the validity of the May 1997

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 was a

presumption of undue influence because there was a confidential relationship, and that Leonard had

not received 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

attorney at the time Leonard executed her will, there was not a confidential relationship between

Currie and Leonard. Moreover, the court concluded that since there was not a confidential
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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 verdict is appropriate in a will contest case only when the evidence in the case is

susceptible to but one conclusion. See Eaton v. McLain, 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 directed verdict.

Id. Furthermore, all reasonable inferences in favor of the opponent of the motion must be allowed

and all evidence contrary to the opponent’s position must be disregarded. Id. Ultimately, an

appellate court “may grant the motion only if, after assessing the evidence according to the foregoing

standards, it determines that reasonable minds could 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 understand the force and

consequence of 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 intelligent consciousness of the nature and

effect of the act, a knowledge of the property possessed and an

understanding 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

thereby rendered incompetent if her mind is sufficiently sound 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 wherein the dominant party receives a benefit from the other

party, a presumption of undue influence 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 relationship 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). 
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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 shifts to the 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 the fairness of the transaction,

the dominant party may show that the weaker party received 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 received independent advice respecting the consequences and advisability 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 executed an

unrestricted power of attorney, which gave his attorney full authority 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. Both the power of attorney and the will were drafted by the decedent’s attorney 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-client 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 power 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 an unrestricted power of attorney to his niece, Debra Gloria Banks Smith. Mitchell,

779 S.W.2d at 386-87. Mr. Bush was living with and being cared for by Mrs. Smith and 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 as executrix and named 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 giving Mrs. Smith access to Mr. Bush’s bank accounts. Id. Mr. Bush

maintained possession of his 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 that 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 Court of Appeals therefore held that there was evidence that Mrs. Smith had a confidential

relationship with her uncle before he executed his will and affirmed the trial court’s denial of a

directed verdict on the issue. Id.

The issue of undue influence should “be decided by the application of sound principles and

good sense to the facts of each case.” Id. at 388 (quoting Halle v. Summerfield, 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 convincing evidence.

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287 S.W.2d 57, 61 (1956)). A careful reading of Matlock and Mitchell shows that an unexercised

power of attorney does not 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. Matlock, 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 power 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 distinguishable from Matlock v. Simpson and Mitchell v.

Smith. The record reveals that Virginia Leonard asked Natasha Currie to drive her and Elizabeth

Barnes to Currie’s Funeral Home so that the decedent could purchase 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 will were executed and she did

not learn of the instruments until after everyone had left the funeral home. Moreover, there is no

evidence that she knew of the decedent’s intentions at any point before the documents were

executed. In short, there is no basis for finding that a confidential 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 aside the jury’s verdict and directing a verdict in favor 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
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of Appeals is affirmed. Costs of the appeal are assessed to the appellant, Billy Joe Childress, for

which execution may issue if necessary. 

___________________________________ 

E. RILEY ANDERSON, JUSTICE