### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE September 4,

2001 Session IN RE: ESTATE OF WILLIAM D. NEE LY Appeal from the Circuit Court for Rutherford County No. 36192 Robert E. Corlew, Judge

No. M2000-01144-COA-R3-CV - Filed October 22, 2001

The trial court set aside a will that was executed shortly before the testator’s death, on findings of confidential re

lationship, suspicio

us circumstance

s and undue influe

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

Affirmed and Remanded
B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R
. and W ILLI

AM B. C AIN , JJ., joined. John T. Blankenship and Patricia A. Blankenship, Murfreesboro, Tennessee , for the appellant, Dorothy Ann Richa

rdson, Exe

cutrix. William P. Nelms, Murfre esb oro, Tennessee, and Susan Melton, Woodbury, Tennessee, for the appellees, Billy Bar rett, Jim Barrett, Micke

y Barret t, Mark Barrett, B

rian Barrett a

nd Timmy Bar

rett. OPINION
I. T HE M AKING OF A W ILL This case involves a challenge to a will executed by an eig

hty-year-old retired f

armer on January 11, 1994, just twelve days before his death. The terms of the will differe d greatly from earlier dispositions of property by the testator and his late wife (who predeceased the testator by four months). Since the question of the validi ty of the will is a close one, we must discuss the circumstances s

urrounding its pr

ocurement and e

xecution in consider

able detail.
In September of

1993, Eula Mai Neely, the wife of William Neely passed away afte r a long illness. Mr. and Mrs. Neely had been childhood sweethe arts, and were married to each other for almost sixty years. His wife’s deat h was a devast

ating blow to Mr. Neely. He cried often in the following months, and spent most of his remaining time lying in bed with his eyes closed. Mr.-2-

Neely’sdoctor diagnose

d him with chronic

depression, and a

dded anti-depre

ssants to the grieving widower’s extensive drug regimen. The Neelys’ marriage had pro duced thr ee daughters,

only two of wh

om survived into adulthood. One daughter, Bob by Jean Bar

rett, died in 1983, leaving six sons. The other daughter, Dorothy Ann Richardson, had three sons and a daughter. All the grandchildren worked in Mr. Neely’snumerous farming enterprises when they were y oung, and continu ed t o help to a lesser extent after they grew up. I n August or September of 19 93, Steven Richardson, who was unemployed at the time, took over the operation of the farm. Ralph Richardson, who had a job as a printer, also helped out, and moved into a tenant house on the property. Both Neelys had

been suffering

from serious hea

lth problems

prior to the death

of Ms. Eula Mai. Because their infirmities made it difficult or impossible for them to handle the ordinary demands of daily livin

g, Ms. Richardson

took over their

financial affairs, and oversaw their medical needs. In 1992, her name was plac ed on their bank accounts. She paid their bills and made arrangements

for the in-home health care they both neede d. She also had access to a key for a lockbox containing all

their important papers. Mr. and Ms. Neely were both bedridden by 1993, and hospital beds were set up for them in the living room of their house. After the death of his wif

e, Ms. Richardson a

nd her sons visited M

r. Neely on a daily ba

sis. Her sons testified that their mother never placed any restrictions or limitations on the time they

could spend with their grand

father. The Ba

rrett grandsons,

who lived further

away, test

ified that they

also tried to visit, but that Ms. Ric hardson discoura

ged them, and limited the duration of each visit to five or ten minutes, telling them that their grandfather was too sick for longer visits. Ms. Richardson admitted limiting their visits, but testified that she did so to protect her father’s health.
At some point, Mr. Nee

ly’s brothe

r and former busi

n ess partner Arzelle visited. William Neely told his brother tha

t he wanted to

change his

will. Attorney Larry

Tolbert had previously taken care of some legal ma

tters for Arzelle

Neely, so Arzelle went to see Mr. Tol

bert, and asked h

im to contact his brother. When Larry Tolbert arrived at the Ne ely home, Dorothy Richardson, her husband, a nd a sitter were there. After exchanging some pleasantries with them, Mr. Tolbert asked them to let him speak privately to Mr. N eely , and they left the room. During his one hour conversation with William Neel y, Mr. Tolbert was able to satisfy himself that Mr. Neely was oriented as to time and place, that he knew t he va rious assets that made up his estate, and that he remembered all his children and gran dchildren. Though it was obvious to Mr. Tolbert that he was extremely ill, the attorne y concluded that Mr. Neely had the mental capacity to make a will.
Mr. Tolbert had Mr. Neely’s existing will in his possession at that meet ing (althoug h it is unclear how he obtained it) . That w il l apparently treated his surviving daughter equally with the heirs of his dece

ased daughter

. Mr. Tolbert rea

d the will line by

line to Mr. Neely, and

Mr. Neely in turn told Mr. Tolbert the changes he wanted to make. Those changes

virtually dis

inherited the six-3-

Barrett grandchildre n, and left almost the entire estate to Dorothy Richardson. Mr. Tolbert asked Mr. Neely his reasons for

such a change, and according to Mr. Tolbert’s testimony , “he indicated that he was disappointed with, I guess, the grandchildren through his deceased daughter , that he didn’t feel like they had come to see him, cared about him, behaved in a manne r that he approved.”
In a week or less,

Mr. Tolbert retur

ned with a draft of the ne

w will. He again

had a private conversation with Mr. Neely , and read the wil

l to him. Thirty

or f ort y m inutes later, two of Mr. Tolbert’s secretaries arrived, and they witnessed the signing of the will by Mr. Ne ely. The wil l named Ms. Richardson as executrix of the estate. A bequest of $18,000 was made to Mr. Neely’s great-grandchild, Erin Nicole Richardson. Another bequest of $4,000 for educational purposes was made to Bryan Daniel Barrett, the only grandchild to ever attend college. The residual clause gave all the remainder of Mr. Neely ’s property

to Dorothy Richardson, withher husband and children as contingent beneficiaries. The clause concluded “[i]n making the foregoingbequest, I am not unmindful of certain other grandchildren by my beloved and decea sed daughter, BOBBYE JEAN BARRETT, but choos e to omit said childre n from any sh

are of my estate.”
On January 15, 1994, just four days after the execution of the will, Mr. Neely was

admitted to the hospital. His doctor testified that he was suffering from chronic depres sion, as well as bedsores, diabetes, severe peripheral vascular disease, and chronic hepatic insuffic

iency. Mr. N

eely died on January 23, 1994. II. A W ILL C ONTEST Pursuant to the petition of

Dorothy Ann

Richardson, the will discussed above was admitted to probate in common form on February 3, 1994, and the Probate Court issued Letters Testamentary to Ms. Richardson as Executrix. On February 8, 1996, the six Barrett grandchildren f iled a complaint to contest the will. They alleged that the will of January

11, 1994 was not val

id because Mr. Neely was not of sou nd mind at the time of its exec ution, and becaus

e he had been und

uly influenced

by Dorothy

Ann Richardson. Th

e Probate Court ce

rtified the will co

ntest for trial to the Circuit Court. Judge Taylo

r of the Circuit

Court conducted a hearing of the matter on January 13 and 14, 1999. After hearing the testimony of Ms. Richardson, three of the Ba rrett brother s, an d Arzelle Neel y, the judge concl

uded that the dec

edent was lucid a

t the time he made hi

s Last Will

a nd Testament. He also found that Ms. Richardson had a fiduciary relationship with the testator, but that s he did not exercise dom inion and control ov

er him, and she wa

s not active in the p

reparatio n o r execution of his will. For those reasons, he determined that the plaintiffs ha d failed to make out

a prima facie case, and he granted the defendant’s Motion for a Direc ted Verdict. The plaintiffs then filed a Motion for New Trial, arguing that the Court’s decision was contrary to existing case law. They contended that the finding of a fiduciary relationship created a-4-

presumption of undue influenc e, sh ifti ng the burden of proof to the defendant to rebut the presumption, and that Ms. Richardson had not met that burden. After reviewing the case of Mitchell v. Smith , 779 S.W.2d 384 (Tenn. Ct. App. 1989) the trial court granted the motion, and ordered the matter reset for trial with a different trier of fact.
A second tri al was condu cted on Marc h 14 and 16, 2000, thi s time befo re Judge Corlew. The proof showed that Mr. Neely’s estate was quite valuable. Aside from fi n ancial assets of over $150,000, it included two farm s of 102 ac res and 124 acres respectively. Both farms adjoin the Murfreesboro City Limits, and are surrounded by subdi visions. Ms . Richardson testified that she didn’tknow much about real estate, but conce ded that the prope

rties were worth

substantially

more than the $165,300 indicated by the inheritance tax return filed under her signatur e. Ms. Richardson admitted under cross-examination that the thought of how the Barr ett boys might spend the money that her father and mother accumulated by their hard work really bothered her, butshe didn’t state the reason for her concern. She testified that her sons did more of the work on the farm than her

sister’s sons, butwhen asked whether she ever called her nephews to come and help out, she stated that “I don’t guess I did. There’s a reason behind that also.” She never explained her reason.
At the close of the pr

oof, and after c

losing argume

nt s, the judge took the case under advisement. He subsequently issued a detailed Letter Memora ndum and an Order, setting aside the will. Judge Corlew foun d a confidential relationship between the testator and Ms. Richardson, which together with

several suspicious circumstances created a presumption of undue influence, and shifted the burden of proof to the proponent of the will to prove that it was not procured by undue influence. The court found that the will’s proponent did not presen t sufficie nt proof to dispel the presumption, and declared the will to be void. This appeal followed.
III. The appellant cont ends that contrary to the finding of t

he trial court, the

re was not a confidential relationship between herself and the testator. She further argues that even if we agree wi th th e trial court that such a relationship did exist, it should not raise a presumption of undue influence, because

Mr. Neely

receive d indepen dent advi ce from Mr

. Tolbert . Wewill examine both of these arguments, and we will discuss some of the suspic ious circumstances that the trial court found were sufficient to support a determination that the will was invalid.

A . C ONFIDENTI

AL R ELATIONS HIP In Matlock v. Simpson , 902 S.W.2d 384 (Tenn. 1995), our Supre me Courtrestated th e longestablished rule that “the existence of a confidential or fiduciary relation ship , together with a transaction by which the domi nant part y obtains a benefit from the other party , gives rise to a presumption of undue influenc e.” 902 S.W.2d at 385 . Certain relatio nships, such as th

ose o f conservator

and ward, are proof, as a matter of law, of the existence of a confidential relationship.-5-

Parham v. Walker, 568 S.W.2d 622 (Tenn. Ct. A pp. 1978). An unre

stricted power of

attorney, i

n and of itsel f, also creates a confidential relationship between the parties. Mitchell v. Smith , 779 S.W.2d 384 (Tenn. Ct. App. 1989). The appellant notes that none of the relationships that prove the existence of a confidential rel a tionshipas a matter of law are present in the case at bar. While her name was on her fa ther’s bank accounts, and she took

care of all

his financial affairs, he did not execute a power of attorney in her favor. She relies upon the case of

Kelly v. Allen , 558 S.W.2d 845 (Tenn. 1977), which cited a long line of prior

cases to the effect that “the normal relationship between a mentally competent parent and an adult child is not per se a confidential relationship and raises no presumption of the invalidity of a gift from one to the other.” 558 S.W.2d at 848. The Allen Court went on to say, however, that where the elements of dominion and control by the stronger

over the weaker

are present, or where there is a showing of senility or physical and mental deterioration in the testator, or other conditions which would tend to establish that the free agency of the donor was destroyed, then the presumption a gainst the will is applicable. See also Richmond v. Christian , 555 S.W.2d 105 (Tenn. 1977).
In the present case

, Mr. Neely

was completely

dependent upon his

daughter, not on

ly for his financial needs, but for all of his physical needs as well. The proof showed that he was taking a great number of medications, that he could not move from his bed to a reclining chair in the same room without assistance, that

he was incontinen

t and had to wear a

diaper, th at he usually lay in bed all day with h is eyes closed, and that h e had to have a sitt

er or someone els

e with him at all times

. Though Ms. Richardson did not reside in his house, she was the onewho hired and paid the sitters who stayed with him when she could not. He was clearly under her dominion and control.
We believe that a wil

l executed under su

ch circums t ances, which leaves virtually all the testator’s propert y to the person exercising d ominion and control

over him, and whic

h disinherits others who would normally be considere d natur al recipients of h

is bounty, must

be regarded w

ith the utmost skepticism. Such skepticism is consistent with the rule which creates a presumption that the weaker party

was the victim of undue influence on the part of the domina

nt party, an

d that his will is therefore invalid.

B . T HE R ULE OF I NDEPENDENT A DVICE The presumption of undue influence arising from the dominion and control of one party by another is not a conclusive presumption. It can be rebutted, but only by clear and convinci n g evidence of the fairness of the transaction. Matlock v. Simpson , 902 S.W.2d 384, 386 (Tenn. 1995). Proof that the testator rec

eived independe

nt advice conce

rning the disposit

ion of his property

is one way to e stablish fairne ss. Bills v. Lindsay , 909 S.W.2d 434 (Tenn. Ct. App. 1993); Richmond v. Christian , 555 S.W.2d 105 (Tenn. 1977).-6-

The appellant conte

nds that she was not inv

olved in any

way with the

advice Mr. Neel

y received from Mr. Tolbert a

t the time of the will’s execu

tion. She notes that M

r. Neely did not ask her to find a lawy

er so he could cha

nge his will,

but asked his brother instead; that she herself had never been a client of Mr. Tolbert’s; and that she was not in the r oom during Mr. Neely’s two conversations with the lawyer. She also testified that she never spoke to Mr. Neely or to Mr. Tolbert about the estate or about the will, and other witnesses testified that they never observed her trying to influence her father in regard to the disposition of his property. The trial court statedthat Mr. Tolbert had acted in a responsible manner, and found that he had counseled Mr. Neely without th e direct involvem

ent of Mr. Neely

’s daughter. Ho

wever, Ms. Richardson’s hands-off attitude in regard to the execution of the will doe s no t fu lly dispel the presumption of undue influence, because it does not eliminate the questions raised by her conduct when she acted, in effect, as the gatekeeper for her f ather. IV. S USPICIOUS C IRCUMSTANCES In Mitchell v. Smith , 779 S.W.2d 384 (Tenn. Ct. Ap p . 1989), this court n oted that while undue influence can be proven by either direct or circ umstantial evidence, direct evidence is rarely available, and in

most cases, it is established by proving the existence of suspicious circumstances warranting the

conclusion that the

will was not the test

ator's free a

nd independent ac

t. Among the suspicious circumstances listed in Mitchell v. Smith, supra, are the existence of a confidential relationship between the testator and the beneficiary, phy sical or mental deterioration of the testator, the testator's advanced age, secrecy concerning the will's existence, the unjust or unnatural nature of the will's terms, and the testator being in an emotionally distrau ght state . 779 S.W.2d at 388.
In the present case

, the trial court f

ound most

of the circumstances listed above to be present to a greater or lesser degree. For example, the court found that the testator had suffered both physical and mental deterioration, but acknowledged that the extent of his mental deterioration was disputed. The court also found that Mr. Neely was emotionally distraught at least some of the time. The trial court also found the limitations on vi sitatio n by the Barrett grandchildren to be a factor warranting suspicion. The proof showed that Ms. Richardson ’s children had un limited access to their grand father, but th at she placed stringent limitations upon visits by the children of her deceased sister. Ms. Richardson testified that these limitations were in plac e for the sake of her father’s health, but she never explained why visits by the Barrett g

randchildren wo

uldbe detrimental to his health, while visits by the Richardson grandchildren would not be. We can infer

from her testimony

that she did not appr

ove of something

in the behavior of her nephews, but since she failed to enlighten the court on what she objected to, we cannot eva

luate the validity of her reasons for excluding them from the company of their grandfather

. We can only1 It is interest ing to note that Brian Barrett, whoentered MTSU in the fall of 1993, never had any conversations with his grandfat

her to let him know that he was attending college. However, he did tell Ms. Richardso n about his plans, and the only beque st to a me mber of th

e Barrett family found in the wil

l of January 11, 1994 w as the one to Brian, “to be used e xclusively for said child’s educa tional expen ses through h is collegiate year s.” -7- observe that she was in a position to control the information he received about them, and that he was dependent upon he

r for an understa

nding as to their c

onduct and their a

ttitude towards him. 1 Appellant disputes the trial court’s findings as to the suspicious circumstances enumerated in Mitchell v. Smith , supra. She also claims that the restrictions imposed upon the Barrett grandsons were not quite as string

ent as they t

estified to, and th

at s he didn’t have complete control over visitation, because Arzelle Neely could visit his brother any time he wanted to. We are compelled to presume, however, that the trial court ’s findin gs are correct, unless the evidence preponderates otherwise. Tenn. R. Civ. P. 13(d). After a careful and thorough reading of the record, w e do not believe that

the evidence pr

eponderates ag

ainst the trial court’s findings that there are a number of suspicious circumstances with regard to the will, and that insufficient evidence was presented by the beneficiary to rebut the presumption of invalidity a rising from those circumstances.
V. The order of the trial court is affirmed. Remand this cause to the Circuit Court of Rutherford County for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant, Dorothy Ann Richardson.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.