### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs February 7, 2000 In Re: ESTATE OF WILLETTE BONITA CA RNAHAN, Deceased Appeal from the Probate Court for Sumner County No. 98P-2 Honorable Tom E. Gray, Judge

No. M1999-00494-COA-R3-CV - Filed November 15, 2000

This appeal arises f

rom a will contest in which the defendant has appealed from a jury verdict invalidating a will on the grou nds of unsound mi

nd and un due influence. The deceased executed two wills. The first will was executed in 1985 naming the plaintiff who was a friend, employee, and the son of the family who cared for her in her later y ears as the sole beneficiary. The second will was executedin 1993 naming the defendant, a man who share cropped tobacco on her farm and wa

s paid to mow her lawn, as the sole beneficiary. The plaintiff alleg ed that at the time the l att er will was executed, the testator was of unsound mind and had been unduly influenced by the defendant. At trial, the jury re

turned special f

in dings that th

e deceased was not of sound and disposing mind on December

29, 1993, when the second will was executed and that she was un

duly influenced by the defendant in making the last

will and testament. On appeal, the defendant presents three issues: (1) whether there was material, substantial evidence to support the jury findings, (2) whether

the trial judge erre d in in structing the jury regarding a pre sumption of undue influence and the burden of proof on finding a confidential relationship, and (3) whether the trial court erred in assessing court costs against the

defendant and no

t awarding him a

ttorneys fe

es. We affirm the j udgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed
W ILLI AM B. C AIN , J, delivered the opinion of the court in which B EN H. C ANTRELL , P.J., M.S., and W ILLI AM C. K OCH , J R ., J., joined.
Phi lli p C. Kel ly an d Gw ynn K . Sm ith , Ga lla tin , Te nne sse e, fo r th e app ell ant , Ro y Lee R ipp y. C. L. Rogers, Gallatin, Tennessee, for the appellee, Timothy J. Cook.
OPINION
FACTS
Willetta Bonita Carnahan died

a widow of

seventeen years on December 1 , 1997, at t he age of eighty-f our leaving two p

roperly executed and witnessed wills and two powers of attorney. The first will after her hu

sband’s death

was executed on April 4, 1985, and the second was executed on-2-

December

29, 1993. A limited power of attorney was executed on October 20, 1987 , and a unrestricted

power of attorney was executed on December 29, 1993. The defendant offered the 1993 will for probate on January 2, 1998. The plaintiff filed a complaint contesting the validity of the latter will on the grounds of unsound mind and undue influence. On April 4, 1985, Ms. C arnahan exe cuted a will stating:
I give , de vis e, an d be que ath to T IMOT HY J ASO N CO OK o f Si mps on C oun ty, Kentucky all my prope

rty, real, personal and mixed,

specifically

including my

farm of approximately 115 acres located north of Portland, Tennessee.
This devise and bequeath to TIMOTHY JASON COOK ismade by me to honor the request and wish expressed

by my be

loved la te h usband, EZRA CARNAHAN, shor tly prio r to his death on October 23, 1979. TIMOTHY JASON COOK has farmed our land since he was boy of approximately 14 y ears and has provided great help and comfort to myself and to my late husband.
The 1985 will was dr

awn by attor

ney John Phillips

. Through the years a

fter her husband’s death, Ms. Ca rna han’s health deteriorated. She suffered from several he

alth pro blems that required regular medical attention, occasional hospital andnursing home stays, and home health care. As her physi cal condition dete

riorated, she be

came increasingly dependent upon the plaintiff’s family (the “Cooks”).
O n October 20, 1987,

Ms. Carnahan exec

uted a limited powe

r of attorney

namin g th e plaintiff’s mother, Beatrice Cook, as her attorney-in-fa ct for her healthcare. Again, Ms. Carnahan chos e to use attorney Phillips to draw the legal document. The Cooks and Ms. Carnaha n wer e neighbors of over forty year s and werevery close friends. Ms. Carnahan did not have children or any close family

members. Up until th

e time of Ms. Carnahan’s death, the plainti ff and his family devoted a significant amount of time to her and performed many ser vices for her.
Without the kno wledge of the Cooks, on December 29, 1993, Ms. Carnahan executed a secondwill naming the defendant as t he s ole ben efi cia ry, or if he did not survive her, his daughter, Dee Anna Rippy. Also on that date, she executed an unrestricted power of attorney naming the defendant as her attorney

-in-fact. The de

fendant share c

ropped tobacco o

n Ms. Carnahan’s farm and was paid to mow her lawn. The second will was contrary to her deceased husband’s expressed w ish, Ms. Carnahan’s subsequent affirmations of her intent to leave her estate to the plaintiff, and the years of care, friendship, and devotion exhibited by the Cooks.
The defendant personally recommended, arrang ed for, and drove Ms. Carnahan to attorney Robert Taylor in Kentucky who ultimately drafted the second

will and unrestricted power of attorney in favor of the defendant. Attorney T aylor did not know Ms. Carnahan

nor did she know him. Attorney Taylor test

ified inconsistent

ly at trial regarding events concern ing the will and fa

iled to-3-

correctly spell Ms. Carnahan’s name in the will. The defendant actually took part in causing the 1993 will to be obtained and executed.
The plaintiff presented lay and expert testimony including testimony from

Ms. Carnahan’s regular physician who testified that after 1992 she was unable

to manage her affairs and could not have understoo d or have been reliably assi sted in pre paring a will. Testimony was introduced that Ms. Carnaha n suffered from several conditions including, but not limited to, dementia, poor mem ory, forgetfulness, confusion, impaired thought processes, and an inability to determine time. The defendant maintains that at all times, Ms. Carnahan was lucid and showed no signs of confusion or dementia. The plaintiff and his family were not aware of the second will or the unre stricted power of attorney in favor of the de

fendant until

1996 when the defendant informed the Cooks of the existence of the documents.
The plaintiff contested the 1993 will on the grounds of unsound mind and undue influence. The jury mad

e special finding

s: We, the jury, fi

nd that Roy L

ee Rippy undu

ly influenc

ed Willetta

Bonita Carnahan, deceased, in making the last will and testament on the 29 th day of December 1993. We, the jury, find that Willetta Bonita Carnahan, deceased, was not of so und and disposing mind on the 29 th day of December 1993 when she made the last will and testament.
Because this case was heard

before a jury, our review is governed by the provision of Tenn. R. App. P. 13(d) that; “[f]indings of fact by a jury in civil actions shall be set aside only if

there is no material evidence to support the verdict.”
DISCUSSION
We first address the

issue of undue infl

uence. The suspic

ious c ircumstanc es frequently relied upon to establish the existence of undue influence are: (1) the existence of a con

fidential relatio

nship between the testator and the beneficiary; (2) the testator’ s physical or mental deterioration; (3) the beneficiary’s

active involvement

in procuring the will or conveyance.Fell v. Rambo , No. M1999- 01039-COA-R 3-CV, 2000 WL 5462 60, at * 9 (T enn. Ct. Ap p. May 5, 2000) (citing In re E lam’ s Estate , 738 S.W.2d 169, 173 (T enn. 1987); Kelly v. Allen , 558 S.W.2d 845, 848 (Ten n. 1977) ; Taliaferro v. Green , 622 S.W.2d 829, 835-36 (Tenn. Ct. App. 1981)).
There was substantial, material evidence that all three of the suspicious circumstances were pres ent to some extent. However, the trial judge instructed the jury on the presumption of undue influence. The defendant argues on appeal that the trial judg

e erred in instructing the jury that, as-4-

a matter of law, a c

onfidential rela

tionshipexisted between the defendant and Ms. Carnahan raising a rebuttable presumption of undue influence.
In 1993, Ms. Carnahan executed a durable, unrestricted power of attorney in the name

of the defendant. While prior law required that the existence of a confidential relationship be proven by the preponderance of the evidence, the supreme court has held tha t an unr est ric ted pow er of att orn ey, in and of itself, crea

tes a co nfidential relationship between the person granting the power and the person receiving the power. Matlock v. Simpson , 902 S.W.2d 384, 386 (Tenn. 1995).
Gen eral ly, a confidential relationship is “any relationship which gives one person dominion andcontrol over another.” Mitchell v. Smith, 779 S.W.2d 384, 389 (Tenn. Ct. App. 1989) (citing Kelly v. Allen , 558 S.W.2d 845, 848 (Tenn.197 7); Turner v. Leathers, 232 S.W.2d 269, 271 (Tenn. 1950); Roberts v. Chase , 166 S.W.2d 641, 650 (Tenn. Ct. App. 1942)). The jury was instructed that the unrestricted pow

er of attorney

in the name

of the defendan

t created a conf

idential relation

ship betweenthe defendant and Ms. Carn ahan . The power of attorney gave the defe ndant unlimited control of all of Ms. Carnahan’s business and personal affairs including control of her person in ca

se of sickness or disability.
It is well settled law in Tennessee that in the face of “the existence of a confidential relationship, followed by

a transaction wh

erein the dominan

t party receives a

benefit from the other part y, a presumption of un due influence a

rises, that may be

rebutted only by clear and c onvincing evidence of

the fairness of the transaction.” Matlock , 902 S.W.2d at 386 (citing Roberts v. Chase , 166 S.W.2d 641 (Tenn. Ct. A pp. 1942); Richmond v. Christian , 55 5 S.W.2 d 105 (Tenn. 1977); Hogan v. Cooper , 619 S.W.2d 516 (Tenn. 1981); Brown v. Weik , 725 S.W.2d 938 (Tenn. Ct. App. 1983); Matter of Estate of D epriest , 733 S.W.2d 74 (Tenn. Ct. App. 1986); 19 A.L.R.3d 575, 596)). On the same date the unlimited power of attorney

was executed in fa

vor of the defen

dant, Ms. Carnahanexecuted a last

will and testament l

eaving her ent

ire estate to the defendant. Because of the unrestricted power of attorney, proof of the fairness of the transaction rests upon the def endant, the dominantparty. Gordon v. Thornton , 584 S.W.2d 655, 658 (Tenn. Ct. App. 1979). The jury was instructedt hat the re sulting confiden tial relationship th

at existed between

the defendant a

nd Ms. Carnahanshifted the burden of proof to the defendant to prove by clear and convincing evide nce that the transaction was fair.
The presumption of undue influence can be rebutted to

show fairness of

the transaction w

ith proof that the donor received independent advice. Hogan v. Cooper , 619 S.W.2d 516, 519 (Tenn. 1981); Richmond v. Christian , 555 S.W.2d 105, 107-08 (Tenn. 1977). In Turner v. Leather , the Supreme Courtstated that “inde

pendent advice m

eans that the advi

ser must not only

be competent but independent”

and adequate pr

oof of independe

nt advice include

s: Proper independent advice in this connection means that the dono r had the [pr eli min ary] benefit of confe rring fully

and privately

upon the subject of

his intended gift with a person who was not only compe tent to inform him

correctly as to its legal effect, but who was furthermore so disassociated from the interests

of the-5-

donee as to be in

a position to advise with the donor impartially and confidently as to the consequenc

es to himself . . . of

his proposed bene

factions.
Estate of Davis , No. 01A01-9803-PB-00157, 1998 WL 832413, at * 5 (Tenn. Ct. App. Dec. 3, 1998) (citing Turner v. Leather , 232 S.W.2d 269, 271-72 (Tenn. 1950)).
The defendant argues that Ms. Carnahan received independent advice from attorney Taylor, the drafter of the 1 993 will and power of attorney . The events in the making of the 1993 will and power of attorney were suspect . The defendant gave Ms. Carnahan attorney Tay lor’s name, the defendant made the appointment for her, and the defendant drove her to his office. The defendant was impeached at trial because he provided incorrect testimony rega rding what he was doing at the time Ms. Carnahan was meeting with the attorney.
In Childress v. Currie , an exception to the rul e that an unrestricted power of attorney creates a confidential relationship was made. Childress v. Currie, No. W1999-00471-COA-R3-CV, 2000 WL 1035952, at * 6 (Tenn. Ct. App. May 15, 2000). The u ndisputed, p ertinent fact in Childress which led to the exception was that the defendant had no knowledge of the power of atto

rney until after execution of the will. Id. at *4-5. The power of attorney could not have been exercised when the will w as executed without such knowledge. Id. Therefore, when the facts and circumstance s reveal that the attorney-in-fact is unaware of an unrestricte d power of attorney , a con fidential relationship is not presumed.
Whether or not this exception is established by the proof is a question of fact to be decided by the jury

. The trial court i

nstructed the jur

y in pertine

nt part as follows: A confidential relationship exists whenever the trust and confidence of one person is placed in the honesty and faithfulness of another.
There is a presumption that the will dated December 29, 1993 was obtained by the undue influence of Roy Lee Rippy because the unrestricted pow er of attorney datedDecember 29, 19

93 naming Roy

Lee Rippy

as atto rney-in

-fact for Willetta Bonita Carnahan, in and of itself, creates a confidential relationship.
This presumption may be overcome if R oy L ee Rippy proves by clear a nd convincing evidence that the making of the will

was not the re sult of undue influence.
In determining whe

ther or not th

e presum ption of undue influ ence is overcome, you may

consider the fac

ts and circumstan

ces as you f

ind them to b e surrounding the making of the power of attorney, and the facts as y ou find themto be as to when Roy Lee Rippy knew of the power of attorney.-6- An unrestricted power of attorney creates a c onfidential relationship. And a confidential relationship, foll owed by a tr

ansaction where

in the dominant par

ty receives a benefit from

the other party, gives rise to a presumption of undue influence that may be rebutted only by clear and convincing evidence of the fairness of the transaction.
The most serious question presented on appeal involves the instruction to the jury relative to a confidential relationship created by the unlimited power of attorn ey execute d contemporaneously with the will in favor of Roy Lee Rippy. The jury finding of undue influence does not disclose whether or not the jury found a confidential relationship to exist or simply held that the evidence established

undue influence regardless of a confidential relationship. There is evidence in the record from

which the jury cou

ld find that Roy Lee Rippy knew about the contempo raneous, unrestricted

power of attorney at the time the will was executed and there is evidence in the record from which the jury could have found that he did not know. This is a credibility question not open to review on appeal from a jury verdict.
The trial court first charged the jury that the unrestricted power of attorney, in and of itself, created a confidential relationship shifting the burden of proof on undue influence to the defendant to establish by clear and convincing evidence that the making of th

e will was not the re

sult of undue influence. Immediately thereafter, the trial court charged the jury that in determining whether or not this presumption of und ue influence has been overcome by the defendant, they may consider the surrounding circumstances including “when Roy Lee Rippy knew of

the power of attorney.” Even if this instruction is erroneous under Childress , such error woul d be harmless in vie

w of the specific finding by the jury that

Ms. Carnahan was of unsound mind at the time the will was executed. The issue of undue influence need not be a ddressed when there has been a finding by the jury that the deceased was incompetent to make a will at thetime of execution. Borenstein v. Blumenfeld , 299 S.E.2d 727, 729 (Ga. 1983).
The next issue is whether findings of both undue influence and unsoundness of

mind are in conflict. Special findings such as undue influence andunsoundness of mind are not conflicting and do not invalidate a general verdict denying the va lidity of a will. Matter of Anderson’ s Estate , 196 Neb. 787, 246 N.W.2d 586 (Neb. 1976); Borenstein , 299 S.E.2d at 729. I t was proper to sub

mit both issues of undue influence and unsoundness of mind to the jury. If either of the jury findings of undue influence or incompete

ncyis supported by the evidence, the invalidity of the will should be sustained.
A proponent of a wil

l who has been adjudged by a jury guilty of undue influence should not be entitled to recover

for his co sts incurred in trying to enforce the will obtained by his undue influence. Mitchell

v. Smith , 779 S.W.2d 384 (Tenn. Ct. App. 1989). The adjudication of costs is in the broad discretion of the trial judge and is reviewable on ly for manif

est abuse. Goodall v. Crawford, 611 S.W.2d 602, 607 (Tenn. Ct. App. 1980). The trial court did not err in assessing

costs against the defendant and in not awardi ng the defend ant attorney ’s fees. We find that the jury findings of incompetency and undue influence should be sustained.-7- CONCLUSION
From the evidence in the record we find that there was substant ial, material evi

dence to support the verdict of the jury that Ms. Carnahan was of unsound mind on December 29, 1993, such that she lacked the c

apacity to m

ake a will on that da

te. Likewise,

there is subst

antial, m aterial evid en ce to support the finding of the jury that the 1993 will was procured by undue influence exercised upon her by the defendant, Roy Lee Rippy
. The judgment of the tria

l court is in all res

pects affir

med a nd costs are taxed against the defendant.
The case is remanded to the trial court for the collection of costs and such other proceedings as are deemed proper.

__________________________________________ WILLIAM B. CAIN, JUDGE