IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 18, 2018 Session

IN RE ESTATE OF CHARLES E. CALDWELL

Appeal from the Circuit Court for Bradley County

No. V-15-396 J. Michael Sharp, Judge

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No. E2017-02297-COA-R3-CV

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This appeal involves a will contest. The decedent’s son alleges that his father “was of 

unsound mind, without sufficient degree of mental capacity and/or was mentally 

incompetent to make a valid will” and “was unduly influenced . . . in all circumstances 

surrounding and including the execution of the purported Last Will and Testament” by 

his daughter. The trial court found that the decedent had the requisite testamentary 

capacity to execute the November 2012 will, no confidential relationship existed between 

the Decedent and his daughter that triggered a presumption of undue influence, and the

will was not a product of undue influence. The trial court further found that, in the 

alternative, the daughter rebutted any presumption of undue influence. The plaintiff 

appeals. We affirm. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which THOMAS R.

FRIERSON, II, and KENNY ARMSTRONG, JJ., joined.

Joshua H. Jenne, Cleveland, Tennessee, for the appellant, Eddie Dean Caldwell.

Ginger W. Buchanan, Cleveland, Tennessee, for the appellee, Maxie Merlene Jones.

OPINION

I. BACKGROUND

Charles Edwin Caldwell (“Decedent”), born on July 5, 1928, executed a will on 

November 5, 2012, (“the November 2012 Will”) that is the subject of this appeal. The 

03/07/2019
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November 2012 Will bequeathed his personal and real property to his daughter, Maxie 

Merlene Jones (“Daughter”). 

Decedent was married to Juanita Caldwell (“Wife”) from 1961 until her death in 

January 2003. Decedent and Wife had one child during their marriage, Eddie Dean 

Caldwell (“Son”). Before this marriage, however, Decedent fathered a child with 

Tommie Millard, who was married to Tom Millard. Because of the sensitive matter of 

the nature of her birth, Daughter did not know that she was Decedent’s biological 

daughter until 1993 when she was approximately 35 years old; until this time, she 

believed Mr. Millard was her father. Out of love and respect for Mr. Millard, the man 

who raised her, Daughter chose not to inform Mr. Millard about Decedent. Son, raised as 

the only child of Decedent and Wife, likewise did not learn that Daughter was his halfsister until after the deaths of Mr. Millard and Wife, at which time Daughter and 

Decedent began to have a relationship as father and child. As of 2008, Daughter began 

frequently visiting Decedent at his home, driving him to various medical appointments 

and picking up his prescriptions. Son and Daughter also began to have a sibling 

relationship. The two played pool together on numerous occasions. Testimony revealed

that it seemed as if Daughter was always a part of the family. 

Decedent’s brother had lost his life in an accident, and one of the children who 

survived the brother, Timothy Caldwell (“Nephew”), moved onto Decedent’s property 

and lived in a trailer on the outskirts of the farm at 1652 No Pone Road, Decedent’s 

family homeplace. Decedent’s first will, executed in September 1999 (“the September 

1999 Will”) included both Son and Nephew as beneficiaries.1 Other beneficiaries 

included Wife and Decedent’s remaining nieces and nephews; Daughter, 

unacknowledged at the time, was not listed as a beneficiary. Although there was 

testimony regarding the existence of other wills between the September 1999 Will and 

the November 2012 Will, Son, as well as Daughter, had conversations with Decedent 

about the need for a new will. 

In late September or early October 2012, Decedent experienced a medical episode 

that was later determined to be a stroke. Decedent apparently suffered a similar episode

in August 2012. Decedent was discharged from the hospital on October 5, 2012. At this 

time, Son lived with his father at the family farm. Daughter also visited many times a 

week. Both Daughter and Son were caretakers to Decedent during his recovery. Son

worked nights and would care for Decedent and do farm work during the day, while 

Daughter stopped at the residence to clean and cook meals for Decedent on her way to 

her home from her job. As a result of the stroke, Decedent suffered some physical 

impairments: his speech was slowed and the use of his right arm and hand was 

debilitated. Decedent’s speech eventually improved, but he did not regain full use of his 

 

1

Son testified that he helped Decedent maintain the 120 acres of farm property and the 

cattle operation. 
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right hand before his death. Decedent placed Daughter’s name on his bank account in 

order that she could write checks on his behalf. 

Both before and after the strokes, Decedent was regarded as a person with 

independent will who could talk to anyone like an old friend. As a result, Decedent 

spoke with several persons about his intentions regarding the disposition of his property 

after his death. The record reveals that Decedent wished to keep the property on No Pone 

Road in the family and wanted Son and Nephew to always have a place to live. Decedent 

also desired to make amends of sorts to Daughter for not playing a role in the first 35 

years of her life. 

On November 5, 2012, Decedent executed the November 2012 Will, the subject of 

this suit, in which he bequeathed his property to Daughter and disinherited Son. During 

the same appointment, Decedent also executed a durable power of attorney in which 

Daughter was named attorney-in-fact. Daughter scheduled the appointment for Decedent 

and drove him to the initial meeting with Andrew Morgan, the attorney who drafted the 

November 2012 Will. Mr. Morgan interviewed Decedent in private regarding the nature 

and extent of his property and to ascertain his intentions and desire for the property upon 

his death. In his testimony, Mr. Morgan acknowledged that Decedent’s speech was 

slowed to a point where the interview took longer than usual. Despite the slowness of the 

responses, however, Mr. Morgan observed that their content and quality raised no 

concerns about Decedent’s mental capacity. Daughter was not present for this part of the 

interview. The November 2012 Will was witnessed by Athena Pendergrass and an 

additional employee of Mr. Morgan’s firm and notarized during the same appointment. 

Twenty-three days later, Mr. Morgan prepared a letter for Decedent and Daughter to 

obtain additional signatures from witnesses who would attest that Decedent was 

competent. Daughter kept the letter and the November 2012 Will at her house. 

Decedent subsequently returned to Mr. Morgan on various occasions. In January 

2013, Mr. Morgan created a quitclaim deed for 1652 No Pone Road by which Decedent

deeded his interest in his property to Daughter. Later, Decedent visited Mr. Morgan for

advice on how to reinstate his right to own a firearm. Nothing in these interviews gave 

Mr. Morgan any cause to be concerned about Decedent’s mental capacity. 

Following the death of Decedent on April 6, 2015, Son initially submitted for 

probate the September 1999 Will and was appointed Personal Representative and granted 

Letters Testamentary. Son immediately initiated suit against Daughter in which he cited 

causes of action predicated on conversion, fraud, misrepresentation and deceit, unjust 

enrichment, and breach of fiduciary duty. He sought punitive damages and injunctive 

relief, and an ex parte restraining order to prohibit Daughter from taking any action

involving the estate’s assets was entered the same day. Daughter, upon being served with 

process in the aforementioned suit, submitted the November 2012 Will for probate and 

was designated Personal Representative. Shortly thereafter, Son commenced this action 
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to contest the November 2012 Will. After a three-day non-jury trial held on August 22-

24, 2017, the trial court found that Decedent had requisite testamentary capacity and that 

the November 2012 Will was not a product of undue influence. Appellant filed a timely 

appeal. 

II. ISSUES

We consolidate and restate the issues raised on appeal by Son as follows: 

A. Whether the Decedent possessed the requisite 

testamentary capacity to execute the November 2012 Will;

B. Whether there existed a confidential relationship 

between Decedent and Daughter; 

C. Whether the November 2012 Will was the product of 

undue influence; and

D. Whether the trial court erred in using a clear and 

convincing evidence standard in regard to its finding of no

confidential relationship. 

III. STANDARD OF REVIEW

In this will contest case tried without a jury, we review the record in regard to the 

trial court’s determinations of facts de novo with a presumption of correctness, unless the 

evidence preponderates to the contrary. Tenn. R. App. P. 13(d); In re Estate of Price, 

273 S.W.3d 113, 119 (Tenn. Ct. App. 2008). The trial court’s conclusions of law, 

however, are subject to de novo review with no presumption of correctness. Id. 

Additionally, “[w]hen a trial court has seen and heard witnesses, especially where issues 

of credibility and weight of oral testimony are involved, considerable deference must be 

accorded to the trial court’s factual findings.” Id. (citing Seals v. England/Corsair 

Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)).

IV. DISCUSSION 

A.

We have had numerous occasions to address the issues inherent in a lack of 

testamentary capacity. Our Supreme Court has concisely stated the following in regard to 
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testamentary capacity: 

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).

Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002) (quoting In re Estate of Elam, 738 

S.W.2d 169, 171-72 (Tenn. 1987)).

The trial court made similar observations, citing In re Estate of Elam and In re 

Estate of Smallman, 398 S.W.3d 134 (Tenn. 2013):

The law requires that the testator’s mind, at the time the will 

is executed, . . . be sufficiently sound to enable him or her to 

know and understand the force and consequence of the act of 

making the will. The testator must have an intelligent 

consciousness of the nature and effort of the act, a knowledge 

of the property possessed and an understanding of the 

disposition to be made. 

A will may be challenged on the theory that at the time of the 

will’s execution the testator lacked sufficient mental capacity. 

It is . . . the time of the will’s execution that is the proper 

point of focus in assessing testamentary capacity. While 

proof of a testator’s mental capacity before and after making 

the will, if not too remote in point of time may be received as 

bearing upon that question [of testamentary capacity,]” the 

mental condition of the testator at the very time of executing 
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the will is the only point of inquiry. While evidence 

regarding factors such as... 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. 

(Internal citations omitted.). 

In the instant case, there was significant testimony at trial about the competence of 

Decedent both before and after the strokes he suffered approximately a month before the 

execution of the November 2012 Will. Of the twenty-three witnesses, only Son

questioned the competence of Decedent. The remaining witnesses testified that Decedent 

was competent and of sound mind as well as independent, strong-willed, and prone to 

speak his mind. Mr. Morgan testified extensively to the best practices he employs when 

creating a will for a client. As to Decedent, Mr. Morgan interviewed him individually 

and out of the presence of Daughter for four to five hours throughout multiple visits and 

confirmed the desires and intentions of Decedent regarding his estate, even his decision 

to omit Son as a beneficiary. In its final order, the trial court noted the following 

regarding Mr. Morgan’s testimony:

[Decedent] discussed why he was leaving his son Eddie out 

of his will. [Decedent] specifically talked about Eddie and 

his prior legal troubles. [Decedent] informed Mr. Morgan 

about the monies he had to spend on behalf of Eddie to pay 

for his legal fees, fines, child support arrearages, as well as 

other legal related expenses that Eddie had accrued. Mr. 

Morgan questioned [Decedent] about not leaving anything to 

his son Eddie, and [Decedent]’s answer was always the same. 

[Decedent] stated that he had taken care of Eddie’s legal 

problems, and the money he had paid on Eddie’s behalf was, 

in his opinion, enough. . . . [Decedent] informed Mr. Morgan 

that he was worried that his son, Eddie, might get the real 

estate and sell it due to his outstanding legal issues and/or his 

lifestyle issues. [Decedent] wanted to be sure that his real 

estate was not used to pay for Eddie’s indebtedness and his 

financial habits and/or financial instability. Because of these 

concerns, [Decedent] wanted to put the farm in his daughter’s 

name. Furthermore, [Decedent] informed Mr. Morgan that he 

wanted to be sure that his daughter was taken care of. The 

court finds Andrew Morgan to be a very credible witness.

Further, Mr. Morgan testified that Decedent knew the extent of his real property. 
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Specifically, Mr. Morgan confirmed Decedent’s oral statements, without reference to any

notes, that his real property was a very specific number of acres. Furthermore, both Mr. 

Morgan and Ms. Pendergrass, a witness to the will, testified that Decedent was of the 

required mental capacity and of sound mind during the execution of the November 2012 

Will. 

The evidence in the record on appeal shows that Decedent suffered at least one

stroke within two to three months before the execution of the November 2012 Will. 

However, the record also reveals that the strokes suffered by Decedent did not cause him 

to suffer any significant diminishment of mental capacity. Although the record indicates 

that Decedent suffered some physical impairments after the strokes prior to his execution 

of the November 2012 Will, the necessary inquiry is whether any impairments affected 

Decedent’s mental capacity. According to the testimony of twenty-two witnesses, 

Decedent did not suffer any noticeable loss of mental capacity due to the strokes. It is 

noteworthy that Decedent made a quick recovery with only minor impairments to his 

speech and arm movements and continued his work on the farm shortly after the strokes. 

Son also advances the argument that his father’s dementia diagnosis disqualifies 

Decedent from having the capacity to execute a will. However, most of the instances of 

questionable mental state shown in the record were too remote in time to be dispositive of 

the issues in this case. Our inquiry requires that “the mental condition of the testator at 

the very time of executing the will [be] the only point of inquiry.” In re Estate of 

Smallman, 398 S.W.3d at 159. Further, Son contends that the trial court should have 

relied on the expert testimony of Dr. Luther Frank Chandler, an internal medicine 

physician whose opinion regarding Decedent was based solely on a review of medical 

records. Despite the trial court admitting the deposition testimony of Dr. Chandler into 

evidence, it gave it little, if any, weight. We defer to the trial court’s determination of 

credibility and weight given to this evidence. 

Based on the testimony of Mr. Morgan, Ms. Pendergrass, and a host of other

witnesses, we find that a preponderance of the evidence supports the trial court’s 

determination that Decedent was of sound mind and had the required mental capacity to 

execute the November 2012 Will.

B. & C.

We now turn to the primary inquiry at trial: whether the November 2012 Will was 

a product of undue influence. A will may be invalidated when that will was a product of 

undue influence. As our Supreme Court has explained:

[A] will may be challenged on the basis that the decedent was 

subject to the undue influence of another in executing the 
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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).

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 also 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).

Childress, 74 S.W.3d at 328.

Thus, the first question before us is whether a confidential relationship existed 

between Decedent and Daughter. As this court explained in In re Estate of Dukes: 

Confidential relationships can assume a variety of forms, and 

thus the courts have been hesitant to define precisely what a 

confidential relationship is. Robinson v. Robinson, 517 

S.W.2d 202, 206 (Tenn. Ct. App. 1974). In general terms, it 

is any relationship which gives one person dominion and 

control over another. Kelly v. Allen, 558 S.W.2d 845, 848 

(Tenn. 1977); Turner v. Leathers, 191 Tenn. 292, 298, 232 

S.W.2d 269, 271 (1950); Roberts v. Chase, 25 Tenn. App. 
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636, 650, 166 S.W.2d 641, 650 (1942). It is not merely a 

relationship of mutual trust and confidence, but rather it is 

one 

where confidence is placed by one in the other and the 

recipient of that confidence is the dominant personality, 

with ability, because of that confidence, to influence and 

exercise dominion and control over the weaker or 

dominated party.

Mitchell v. Smith, 779 S.W.2d 384, 389 (Tenn. Ct. App. 

1989) (quoting Iacometti v. Frassinelli, 494 S.W.2d 496, 499 

(Tenn. Ct. App. 1973)). “A normal relationship between a 

mentally competent parent and an adult child is not per se a 

confidential relationship and it raises no presumption of 

invalidity of the transaction.” Bills v. Lindsay, 909 S.W.2d 

434, 440 (Tenn. Ct. App. 1993).

In re Estate of Dukes, No. E2014-01966-COA-R3-CV, 2015 W.L. 5313547 at *12 (Tenn. 

Ct. App. Sep. 11, 2015). Significant to our review is the fact our Supreme Court has

clarified that “[w]hen an unrestricted power of attorney is executed but has not yet been 

exercised, . . . there exists no dominion and control and therefore no confidential 

relationship based solely on the existence of the power of attorney.” Childress, 74 S.W. 

3d at 329. 

It is well settled that “[p]roof of the existence of a confidential relationship, by 

itself, will not be sufficient to invalidate a will. It is not the relationship that concerns the 

courts but rather the abuse of the relationship. Proof of the existence of a confidential 

relationship must be coupled with evidence of one or more other suspicious 

circumstances that give rise to a presumption of undue influence.” Delapp v. Pratt, 152 

S.W. 3d 530, 540 (Tenn. Ct. App. 2004) (quoting In re Estate of Maddox, 60 S.W.3d 84, 

89 (Tenn. Ct. App. 2001) (other citations omitted)). This court further explained: 

The suspicious circumstances most frequently relied upon to 

establish undue influence are: (1) the existence of a 

confidential relationship between the testator and the 

beneficiary, (2) the testator’s physical or mental deterioration, 

and (3) the beneficiary’s active involvement in procuring the 

will. Some other recognized suspicious circumstances are:

(1) secrecy concerning the will’s existence; (2) the 

testator’s advanced age; (3) the lack of independent 

advice in preparing the will; (4) the testator’s illiteracy 
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or blindness; (5) the unjust or unnatural nature of the 

will’s terms; (6) the testator being in an emotionally 

distraught state; (7) discrepancies between the will and 

the testator’s expressed intentions; and (8) fraud or 

duress directed toward the testator.

The courts have refrained from prescribing the type or 

number of suspicious circumstances that will warrant 

invalidating a will on the grounds of undue influence.

Delapp, 152 S.W. 3d at 540-41 (citing In re Estate of Maddox, 60 S.W. 3d at 89; Mitchell

v. Smith, 779 S.W.2d at 388 (internal citations omitted).

Therefore, to invalidate a will based on undue influence, the contestant of a will is 

required to prove, by a preponderance of the evidence, the existence of a confidential 

relationship that was surrounded by suspicious circumstances. See Delapp, 152 S.W. 3d 

at 540-41; In re Estate of Maddox, 60 S.W. 3d at 89. Thus, Son must show that a 

confidential relationship existed between Decedent and Daughter and that suspicious 

circumstances surrounded this relationship. Son does in fact contend that this 

confidential relationship existed. 

The record before us does not reveal such suspicious circumstances as existed in 

the cases relied upon by Son. Both Daughter and Son were caretakers of Decedent after 

he was treated for a stroke. Decedent made a quick recovery and was able to continue his 

duties on the farm and, by all accounts, was once again independent. Son has not 

established that Daughter had opportunities to sequester Decedent in order to exert 

dominion and control over him. 

Although Daughter had some hand in procuring the appointment for the creation 

of the November 2012 Will, her role appears limited to making the appointment and 

driving Decedent to the office of Mr. Morgan. Daughter was not present during the 

interview Mr. Morgan conducted with Decedent. There was testimony that Decedent 

attended further appointments, including appointments with Mr. Morgan and 

unscheduled appointments with the Register of Deeds, without Daughter. Despite a

durable power of attorney being executed which named Daughter as the attorney-in-fact 

on the same date as the November 2012 Will, the record reveals that this power of 

attorney was never exercised. Daughter instead relied on the express permission of 

Decedent to write checks on the account to which Decedent had added Daughter’s name. 

Son contends that Daughter kept the November 2012 Will secret. However, there 

was testimony that Son along with Daughter discussed with Decedent about obtaining a 
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new will.2 Further, the record reflects that Daughter and Son had at least one 

conversation in the presence of Decedent in which they discussed, or at the very least 

alluded to, the existence of the November 2012 Will. Additionally, the fact that Daughter

possessed the November 2012 Will and that it was not kept in Decedent’s safe is not 

dispositive under the facts of this case, as both Daughter and Son testified that the 

combination to the safe in which Decedent kept his important papers remained the 

generic default combination that was possibly shared among family members. 

In our view, a preponderance of the evidence supports the determination of the 

trial court that Son has not advanced a combination of suspicious circumstances that 

would sustain a finding of a confidential relationship between Decedent and Daughter. 

The relationship between the two was that of an elderly parent and an adult child. The 

relationships between family members and relatives are not by themselves confidential 

relationships. Mitchell, 779 S.W.2d at 389 (citing Halle v. Summerfield, 287 S.W.2d 57, 

61 (Tenn. 1956)). 

Additionally, the November 2012 Will is not inconsistent with the intention of the 

Decedent to treat his children equally. There is ample evidence that Decedent regretted 

not having any relationship with Daughter until she was 35 years of age and wanted to do 

right by her. Whereas Decedent provided Son with financial help on numerous 

occasions, there is very little on the record where Decedent provided Daughter with 

anything other than naming her the beneficiary under the will and the 2013 quitclaim 

deed. There is also evidence that Decedent wished to keep the farm in the family where 

Son and Nephew would always have a place to live. As the trial court held in its final 

order:

The court finds that [Decedent] had a great deal of trust and 

confidence in the defendant [Daughter]. . . . [Decedent] 

believed that his son still owed a great deal of money for his 

back child support obligation that he had not paid, and he was 

concerned that Eddie would sell some or all of the farm to 

pay his child support arrearage. . . . [Decedent] also believed 

that his son Eddie owed a great deal of money to the IRS for 

back taxes. Ultimately, [Decedent] did not believe that Eddie 

would be able to keep the farm, nor would he be able to pay 

for the maintenance and upkeep of the farm. Because of this, 

[Decedent] believed that Eddie would simply sell the farm.

Indeed, Son admitted in his testimony and to others that the farm was his “retirement 

 

2

Interestingly, Son admits in his testimony to the existence of wills other than the 

September 1999 Will that Son submitted for probate. Specifically, Son testified to two other 

wills but failed to produce proof of the wills at trial. 
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plan.” Leaving the property to Daughter, apparently the only one in the family with 

resources to pay the taxes, is consistent with Decedent’s desire for the farm.

The testimony of Mr. Morgan, the attorney who prepared the November 2012 

Will, is noteworthy on this issue:

I point blank asked [Decedent] why he intended to leave such 

a disparate amount, the way he was leaving it, and he said 

that Eddie had gotten in some trouble years ago and he spent

a lot of money trying to get Eddie out of it – out of the 

trouble, that is – and he just wanted to do right by Maxie. 

And I, of course, asked him, you know, has she – I don’t 

remember the words I used but I effectively asked if she had 

been influencing him in some way and he assured me that she 

had not.

The trial court determined that no confidential relationship involving dominion 

and control existed between Decedent and Daughter and, therefore, no presumption of 

undue influence arose. In the alternative, the trial court held that, even if the presumption 

arose, Daughter rebutted the presumption with clear and convincing evidence that 

Decedent received independent advice. See In re Estate of Maddox, 60 S.W.3d at 89. 

We defer to the trial court’s credibility determinations based upon observation of the 

witnesses at trial. The evidence, particularly Mr. Morgan’s and Ms. Pendergrass’s 

testimony, supports the determination of the trial court that no confidential relationship 

existed between Decedent and Daughter.

D.

The trial court announced that the burden of proof in this matter was by “clear and 

convincing evidence.” Son contends, and Daughter agrees, that the trial court erred in 

this statement and that the correct standard to prove the existence of a confidential 

relationship is by a preponderance of the evidence. We agree that the court’s statement 

was in error. However, after reviewing the record de novo, with a presumption of 

correctness in regard to findings of fact, we find that the error was harmless and the 

record, in its entirety, supports the trial court’s decision in accordance with the 

preponderance of the evidence standard. 

V. CONCLUSION

For the reasons stated above, we affirm the decision of the trial court. The case is 

remanded for such further proceedings as may be necessary. Costs of the appeal are 

taxed to the appellant, Eddie Dean Caldwell.
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_________________________________

JOHN W. MCCLARTY, JUDGE