# FILED
September 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

IN RE: BANKS DEWEY THOMPSON ) ) CHRISTINE PERRY, ) ) Appeal No. Plaintiff/Appellant, ) 01-A-01-9801-CH-00044 ) VS. ) Grundy Chancery ) No. 94-612 JAMES EARL RUBLE Y, ) ) Defendant/Appellee. )
APPEALED FR

OM THE CHAN CERY COUR T OF GRUNDY

COUNTY AT ALTAMONT THE HONORABLE JEFFREY F. STEWART, CHANCELLOR

PAUL D. CROSS 100 Highway 64 West P. O. Box 99 Monteagle, Tennessee 37356 Attorney for Plaintiff/Appellant AUBREY L. HARPER 114 North College Street P. O. Box 588 McMinnville, Tennessee 37111-0588 Attorney for Defendant/Appellee

REVERSED AND REMAND ED

BEN H. CANTRELL, JUDGE
CONCUR: TODD, P.J., M.S. KOCH, J.- 2 - 

## O P I N I O N

The trial court set aside the testator’s 1992 will on the ground that the sole benefic iary under that wi ll ha d exe rted un du e i nf lu en ce up on th e t esta

to r. We reverse, because we find that the evidence in the record preponderates against the trial court’s finding of undue influence.
I. The Making of Two Wills

This case involves tw

o wills executed by

Banks Dewey Thompso n, a resident of Grundy County who was born in 1903. After the death of his wife, Mr. Thompson executed a will w hich named the appellee, his nephe w James Ea rl Rubley,
as his ex

ecutor a nd chief b eneficiary. The will was dated August 8, 1984. Mr. Thompson executed a second wil l on May 8, 1992, which explicitl y revoked all pri or wills, and which named the appellant, Mrs. Christine Perry, as his executrix and sole benefi ciary. The partieshave stipulated that both wills were executed in accordance with the requirements

of Tennessee law.

Both wills recited that

Banks Thompson had no children surviving him. The proof showed that James Rubley and other family members had assisted Mr. Thompson in numerous ways for over 20 years, and that they continued to assist him
as he aged, a nd as his p hys i cal condition declined. M r. Rubley and his family lived in Warren County, about seven miles away from Mr. Thompson. After his wi fe died, Mr. Thompson signed over his l ife savings of about $19,000 to M r. Rubley, in order to qualify for SSI and Medicaid benefits.

In December

of 1991, Mr. Thompson was admitted to the hospital with
a flu-l ike illness. The admitting doctor, Jim Jenkins diag nosed the illness as- 3 -

septicemia, and also noted several othe r cond itions in the elderly gentleman, including mild dementia. After a follow-up v isit, Dr. Jenkins

recommended that Mr. Thompson
no longer

drive, and that he should no t be left alone. Mr. Rubley accordingly asked Christin e Perr y if she could provide his uncle with household help. Mrs. Perry lived just a fewhouses away from Mr. Thomps on, and had known him and his late w ife for about twenty-five years.

Mrs. P erry agreed to help Mr. Thompson. At first she declined Mr

. Rubley’s offe r to pa y for her services, but she finally agreed that Mr. Rubley could make payments to her teenage so n forhis school expenses. The payments, which ultimately totalled $325, were taken from the money that Mr. Thompson had tur ned over to his nephew.

Mrs. Perry visited M r. Thompson twice a day, cooked an d cleaned for him, kept him company, and did much to make him comfortable. Mr. Rubley and his family continued to buy grocer ies for the elder lywidower and to deliver them to his home. They did not tell Mr. Thompson thatMrs. Perry w as being paid, because they feared that he would refuse her s ervices if he knew th at any money was inv olved.

There was a considerable amount o f testimony in the r

ecord a s to a d ecline in Mr. Thompson’s faculties after 1990, including problems w ith mem ory , vision and hearing. Howev er his lifelong friend, Ear l Creighton, te stifie d that even afterMrs. Perry began helping h im, Mr. Thompson remained activ e, that he continued to take care of his garden, that he bui lt a closet in his bedroom fr om lumber

that Mr. Creighton brought hi m, and that the two friends coul d enjoy an intelligent conver

sation that lasted over two hours.

At one point, Mrs. Perry drove Mr. Thompson into tow n so he could see his lawyer, William Davis. According to Mr. Davis’ deposition testimony, he and Mr.- 4 -

Thompson went to the bank to check on his account. Mr. Thompson expected there to be $19,000 in his account, and according to Mr. Davis, he was disappointed when he learned that there was no significant balance. The appell ee suggests t hat Mr. Thompson did not remember the circumstan ces under whi c h he transferred the moneyto his nep hew, due t o a fault y memory. The appellant claims that Mr. Rubley
never properly accounted to Mr. Thompson for the use of his m oney. In any case, Mr. Thompson subsequently decided to change his will. At trial , Mrs. Perry descr ibed the circumstances under whi ch she learned of his plans:

Q. Whose idea was it that Mr. Thompson made a will leaving you his pl ace? A. Mr. Thompson’s idea. Q. Tell his Honor what the first you heard about that was. What was the first you knew about that ?

. . . A. When I was up there at his hous e, and I was

i n the kitchen and I was washing everything off in the kitch en an d straighteningup, he was on the porch and he camein there and tol d me he needed to talk to me. So I just lai d my dishrag dow n and I dried my hands and said ok ay. And he said I am going to

fix up a paper so you can have my place. And I told hi m, I said, you don’t have to do that Banks. And he said hush, and went on out.

Mr. Thompson subsequently asked Mrs. Perry to drive him to town so he could see Mr. Davis again. Mrs. Perry and her husband accompanied Mr. Thompson to town, but Mr. Thompson conferred alone with Mr. Davis when the will in dispute was drafted. The following month, Mr. Davis drafted an instrument which gave Mrs. Perry a Durable Power of Attorney over Mr. Thompson’s financial affairs. It is undisputed that Mrs.Perry never made use o f this Power of Attorney.

II. Conservatorship and Probate Proceedings1 The actio n wa s bro ugh t in W arre n Co unty b eca use Mr. T hom pso n had a Mc Minn ville add ress , and Mr. R ubley’s attorn ey ass um ed th is m ean t he w as a r esid ent o f W arre n Co unty. W hile we are not cert

ain that the tri al court a cted properly in waiving any questions of jurisdi ction and venue in order

to proceed, we have not been cal led upon to rule on the pr opriety of a proceedi ng which is a t mos t collateral to this a ppeal. - 5 -

Shortlyafter the 1992 will was drafted, Mr. Rubley and his four brothers filed a petition in the Warren County Court 1 , askin g for the appoint ment of a

guardian ad litem for

Mr. Thompson, and the appointment of Mr. Rubley as conservator. The
case was heard by the Cha ncery Cou rt’s Clerk and Master. On June 9, 1992 the court found that Mr. Thompson was incapable of ma naging his o wn affai rs, and appointed James Rubley as his c onservator and attorney Scott Horton as guardian ad litem.
In a subsequent proceeding, Mr. Thompson asked that Mr. Rubley be removed as conservator, and filed a counterclaim for the return of hi s $19,000. The court replace d Mr. Rubley as conser vator with Mr. Horton. Because the court w as concerned that Mr . Thom pson may have expos ed himself to liability by making a fraudulenttransfer to his nephew, it declared the $19, 000 to have been a gift, with a resulting trust impressed upon a portion of it for Mr. Thompso n’s funeral expenses.

Mr. Thompson’s physical and mental condition d eclined, and sometime in 199 4 he entered a nursing home. H e died on September 7, 1994. Shortl y thereafter, Mr. Rubley filed a peti tion for probate of Mr. Thompson ’s 198 4 will. The petition stated that the decedent left no personal property, and i ndicated that the sole assets of the estate were Mr. Thompson’s house,and the lot it stood upon, w hich the Petitioner

estimated to be worth about $12 ,000. Mr. Rubley also s tated that he had “made a thoroug h search f or Wil ls signed b y t he Decedent other and later than the Will presented but has found no such Wills.” On September 30, 1994, Mrs. Per ry filed a petition for probate of the 1992 will.- 6 - During a two-par

t hearing, the appe llee arg ued that the later will was invalid, because Mr. Thomps on lac ked testamentary capacity at the time it was drafted, and beca use it was th e produc t of und ue influ ence on t he part of Mrs. Perry. The tria l court found that the appellee failed to prove that Mr. Thompson la cked tes tamentary capacity, but that he succ eeded in proving undue influe nce, thereb y invalidating the 1992 w ill. This appeal followe d.
III. Evidentiary Questions
During the trial of this case, Mr. Rubley offered documentation from the Warren County conservatorship proceedings to prove that Mr. Thomp son lacked testamentary capacity. These documents included the order s of the court, the report of guardian ad litem Scott Horton, and the transcript of the proceedin gs. The Grundy County Court admitted these documents over the objections of Mrs. Perry’s attorne y, who argued that the y constitu ted inad missable hearsay.

We believe that under Rule 804(b) of the Tennessee Rules of Evidence, it was error to admit

the transcript

of the Warren County proceedings into evidence. The relevant portion of Rule 804(b) reads:

Hearsay Exceptions.-- The

following are not

excluded bythe hearsay rule if the declarant is unav ailable as a witness: (1) Former

Testimony.-- Testimony given as a witness at another hearingof the same or a different proceeding or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against w hom the testimony

is nowoffered had both an opportunity and a similar motive to develop the testimony by direct , c ross, or redirect examination. Since none of the witnesses at the conservatorship proceeding, except forMr. Thompson, were later unavailable, as that term is defined in Rule 804(a), it follows that it was error t o admit the prior testimony of any of those witnesses (except possiblyfor Mr. Thompson’s) at the late r pr oceedi ng. However after r eading the transcript

at issue, we find the error to be harmless, because the testimony elic ited at- 7 -

the conservatorship proc eeding did not go to

the qu estion of Mrs. Perry’s influence over Mr. Thompson, but only to his capacity to handl e his own affairs.

We further note that ScottHorton testified at the tri al of this case, and used his own report to refre s h his me mory. There was thus a possible basis for admitting the report, but again, even if it was error to admit it, it has to be cons idered harmless, because the report was just duplicative to Mr. Horton’s testimony. For the sake of c onvenien ce, we summ arize that testimo ny directl y below.

Mr. Horton interviewed Mr. Thompson in the presence of Mrs. Perry. He found Mr. Thompson to be “healthy and in good spirits, hard of hearing and a likeable person.” Mr. Thompson told Mr. Horton that James and Betty Rubley had gotten his savings account, and that he wanted to get it back. He also said that he did not need
a conservator, but that if he did have someon e handl ing his money, it shoul d be Christine Perry. Mrs. Perry was asked if she

wanted to do this, and she ans wered, “whatever he wants.” Because of Mr. Thompson’s hearing problem, he reliedupon Mrs. Perry

to tell Mr. Horton to sp eak louder, or to repeat what Mr. Horto n was saying.

The final evidentiary i ssue involves the order s of the Warren County Court. S ince those are public records, they are admissible under Rule 1005 of the Rules of Evidence, but only to the extent that they meet the requirement of relev ance. We note that the Grundy County Court stated that it only admitt ed the orders and the transc ript “b ecause they may have some bearing on the issue of Mr. Thompson’s mental capacity.” They were thus admitt ed only for a limited purpose. The court correctlyfound the orders not to be res judicata for the purpo se of establish ing th e existence of undue influence.

IV. Undue Influence- 8 - As we stated above, the trial court found that Mr. Thompson possessed testamentary capacity at the time he executed the 1992 w ill, but that he was

unduly influenced by Mrs. Perr y, thus rendering the will invalid.

Undue influence exists

where thefree agency of a testator is destroyed to the extent that the wil l, though nominally the t estator ’s own, is in reality that of another. Taliaferro v. Green , 622 S.W.2d 829 (Tenn. App. 1981). As a general rul e, it is presumed that un due infl uence does not enter int o the mak

ing of a will, and the burden of proving undue influence falls upon the person contesting the will

. Hammond v. Union Pl

anters National Bank

, 189 Tenn. 93, 222 S.W .2d 377 (1949).

It is not unusual for

a testator tochange his will t o benefit an individual who has helpe d him during hi s declining years . But as this court said in Matter of Estate of DePriest,733 S.W.2d 74 (Tenn . App. 1986):

“Influence arising from mere acts of kindness, attention, and congenial intercourse which operate to secure or retain the affection, esteem, or good will of the testat

or , and induce him to make the persons performing such kindly offices beneficiaries in his w ill, do not constitute undue influence, unless such acts are carried out with the purpose and design of su bjecting the mi nd of the testator to the influence and the direction of the pers on exercising the influence, and thus dep ri ve the testator of his free w ill, free act, and free agency." 733 S.W.2d at 78.

There is no testimony in the r ecord to indicate that Mrs. Perry ac ted with the design of subs titutin g her will for that of Mr. Thompson, or that she encouraged him in any way to name her as his beneficiary. It seems clear that Mr. Thompson’s decision was induced in part by his resentment over Mr. Rubley ’s handling of his bank
accou nt, and in part by a belief that M rs. Perry was ac ting purely as a goo d Samaritan. Ho wever th ere is no proof that Mrs. Per ry ever criti cized Mr. Rubley , or that she did anything

to fuel Mr. Thompson’s resentment of his nephe w. Further, Mrs. Perr ywas onl y following Mr.Rubley’s instructi ons by not disclosing her financial arrangements with him t o Mr. Thompson.- 9 - Because of the complete lack of evidenc e of undu e influence in the record, we must conclude that the trial court relied upo n the court orders fromWarren County to reach its conclusion,des pit e its statement that those order s were being admitted solely fo r the purp ose of sh edding lig ht on Mr. T hompson ’s mental capacity. The Warren County Court’s order of June 9, 1992 reads in part:

IT IS FURTHER ORDERED that the Court fin ds that at the pre sent t ime Christine Perry is being paid by the members of Banks Thompson’s family to look after and care forhim, to cook meals for him, and chec k on h im as to his welfare and safety, and th e Court finds that upon the report of the Guardian Ad Litem, that Banks Thompso n thinks that said lady, Christine Per ry, is, in fact, ac

tin g out of the goodness of her heart as a neighbor, not realizing that she is a paid employee, and the Court therefore finds that Christine Perryis in a fiduciary relationship with Ban ks Thompson, and that she is abu sing her f iduciary relatio nship by influencing Banks Thompson in the possibil ity that he may have approximately six months ago, accor ding to the finding of the Guardian Ad Litem, executed a Will which may , in fact, not be a valid Will due to the findings of this Court that, at that time, Banks Thompson was not well

.
Putting aside the obvious question of why the Clerk and Master chose to render an advisory opinion on a matter beyond its subje ct mat ter jurisd iction, we must state that the above-qu oted language was entitled to little or no weig ht at trial, because it is at best unsolicited opinion evidence and at worst inadmissable hearsay. We conclude that the evidence preponderates against the findi ngs of the trial court. See Rule 13(d) Tenn. R. App. Proc.

The appellee claims, howev er, that the reas oning of the trial court is sound, and that Mrs. Perry sho uld be considered to have been in a confidential relationship with thetestator. Such a relations hip can create a presumption of undue influence, where a part y to that relationship is named as the sole beneficiary of the other party’s will

. Richmond v. Chris tian , 555 S.W.2d 105 (Tenn . 1977). When a confidential relationship is prov en to e xist, the burden of proof is said to shift to the beneficiary to rebut the presumption. Parham v. Walker , 568 S.W.2d 622 (Tenn. App. 1978).- 10 - While confidential relationships include certain well -recognized legal relationships

such as attorney and client, co nservator and ward, and principal and agent, the term also includes less well -defined relationships w here one party reposes confidence in another, and acts in reliance upon the other’s representations. So far
as Mr. Thompson’s financial affairs w ent, there appears to be no evid ence of a confidential re lati onship with Mrs. Perry. She seems to have acted only as Mr. Thompson’s friend and as his housekeeper, not as his financial advisor or his banker.

We further note that in Mitchell v. Smith , 779 S.W.2d 384, 389 (Tenn. App. 1989), this court stated that a confidential relati onship is not merely one of mutual trust and confidence, but 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.”

Even if we concede, for the sak e of argume nt that the relationship between Mrs. Perry and Mr. Thompson meets the above definition, w e note that many of our casesindicate that proof of a confidential relations hip alone will not suppo rt a finding of undue i nfluence , unless accompa nied by

proof of o

the r suspicious circumstances

indicative of such influence. Vantrease v. Carl , 410 S.W.2d 629, 632 (Tenn. App. 1966); Taliaferro v. Green, 622 S.W.2d 829, 836 (Tenn. App. 1981).

The trial c

ourt re lied upo n langu age found in the c ase of In Re Estat

e of Elam , 738 S.W.2d 169 (Tenn. 1987) as the basis for its presumption that Mrs. Perry exerted undue influence upon the mind of the testator:

“In order for such a presumption to arise there must be a showing that

there were present the el ements of dominion and control by the stronger ov er the weaker, or there must be a showing of senility

or physical and mental det er iora tion of the d onor or that fraud and duress was involved, or o the r conditionswhich would tend to establish that the free agency- 11 - of the donor was destroy ed and th e will of the donee was substituted therefor.” 738 S.W .2d at 173, quot ing Kelly v. Allen , 558 S.W.2d 845 (Te nn. 1977).

While there was proof in the record that Mr. Thompson had already suffered some physical and mental deteri oration at the time of the wil l’s execution, we do not beli eve tha

t this fa ct is suff icien t by itself to create a pr esumption of undue influence, without some proof that Mr.Thomps on’s inf irmity created such a dependence upon Mrs. Perry as t o destroy his free

will. See Williamson v. Upchurch , 768 S.W.2d 265 (Te nn. App. 1988).

The record showed to the contrary that Mr. Thompso n relied upon both Mrs. Perry and Mr. Rubley for many of his physical needs, but was apparently independentenough to live on h is own, to do some of his own cooking, to mow his yard, and to build a

closet in his house. Des pite the important role she played in Mr. Thompson’s daily life from 1992 on, there w as no eviden ce that Mr. Thompson’s decision to make her his beneficiary was the product of anyone’s will other than his
own. Indeed, it appears that Mr. Thompson was a person of strong will, who would not tolerate

attempts by

others to mak

e decisions

for him.

The appellee argues that a confid ential relat ionship and undue influence can be inferred from Mrs. Perry’s role in driving Mr. Thompson to his lawyer’s office
on the day h e executed his will , and from the fact that he subsequently granted her
a power of attorney. But such acts ar e not sufficient to establish a confid ent ia l relationship, because they fall far short of indica ting that Mrs. Perry was active in connection with the preparation or the execution or thewill, or that she s ought in any way the power of attorney that was granted to her. See Talia fer ro v. Green , 622 S.W.2d 829, 836 (Tenn. App. 1981); Vantrease v. Carl, 410 S.W.2d 636 (Tenn. App. 1966).- 12 - V.

The judgment of the trial court is reversed. Remand thi s cause to the Chancery Court of Grundy County for further proceedings consistent w ith this opinion. Tax the costs on appeal to the appe llee.

____________________________ BEN H. CANTRELL, JUDGE CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE

_______________________________ WILLIAM C. KOCH, JR., JUDGE