FILED

April 15, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

BETTY JEAN STREET, ) C/A NO. 03A01-9710-CV-00488

)

Plaintiff-Appellant, ) WASHINGTON CIRCUIT

)

v. ) HON. THOMAS J. SEELEY, JR.,

) JUDGE

ROBERT L. WADDELL, GARY )

WALTERS, TRUSTEES OF SALEM )

PRESBYTERIAN CHURCH, )

TRUSTEES OF SALEM )

PRESBYTERIAN CEMETERY FUND, )

RANDY HURST and RUTH )

TRIVETTE BRAY, ) AFFIRMED

) AND

Defendants-Appellees. ) REMANDED

BOB McD. GREEN, Johnson City, for Pla intiff-Appellant.

M. STANLEY GIVENS and JACK R. CARRIER, Johnson City, for DefendantsAppellees.

O P I N I O N

Franks, J.

In this will contest case, the Trial Judge upheld a will without a jury, and

the contestant has appealed.

 Edith Trivette, executed three separate wills over a period of

approximately three years. The last will was executed on August 31, 1994, and

devised $1,000.00 to the Salem Presbyterian Church in Washington County and a

diamond engagement ring to her stepdaughter, Ruth Trivette Bray. It then divided the

remainder of the estate equally between Robert L. Waddell, Betty Jean Street, and the

Salem Presbyterian Church Cemetery Fund. Robert L. Waddell, as Executor, caused
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the will to be probated, and ultimately distributed the estate in accordance with the

will. Some five months after distribution of the estate, Betty Jean Street, who had

received $46,762.27 from the estate, filed a petition to contest the will, and upon an

extended trial, the Trial Court ruled against the contestant. 

At trial, the contestant offered the deposition of Dr. Ralph Lee Mills in

evidence to the effect that Trivette suffered from senile dementia. The doctor testified

that he had treated Trivette from 1988 through 1992, and that “slowly over the course

of time when I began treating her, she slowly developed progressively worse

dementia.” Dr. Mills did not see Trivette in 1993 or 1994, although he expected that

her mental and emotional condition would have deteriorated during that time. 

The contestant, on appeal, insists that the burden of proof of

testamentary capacity shifted from the contestant to the proponent of the will upon

proof of a se rious permanent mental impa irment.

In this regard, the Tennessee Supreme Court has said: “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 testa tor is not thereby rendered incompetent if her mind is

sufficiently sound to enable her to know and understand what she is doing.” In re

Estate of Elam, 738 S.W.2d 169, 171-2 (Tenn. 1987) (citing American Trust &

Banking Co. v. Williams, 32 Tenn. App. 590, 225 S.W.2d 79, 83 (1948) (emphasis

supplied.)

This Court, in the American Trust & Banking Co. case observed:

Evidence of prior mental condition may have much, little or no

probative value depending upon the nature and effect of the malady,

whether general, habitual, continuous, chronic or progressive or due

merely to temporary, superficial, accidental, occasional or intermittent

causes or conditions. If the debility falls within the first category,

evidence of the testator’s condition at a time other that the date of the

execution of the will may shift the burden of proof and require the

production of affirmative proof of his condition a t the very time the will

was executed.
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225 S.W.2d at 84. 

In this regard, Green v. Higdon, 870 S.W.2d 513 (Tenn. App. 1993),

considered the impact of the deposition of a Dr. Kaplan offered by the contestant of a

will. The doctor testified “His niece tells me he’s been confused for more than a year. 

On examination he was obviously disoriented. He obviously has an organic mental

state. In view of the history, it’s likely that he has senile dementia. I don’t think he is

capable of looking after his own affairs as long as this present mental state detention

continues. . . My conclusion is that he must have had this primary dementia

Alzheimer’s Disease for some years. The exact number of years, I couldn’t be certain

of. Based on my observations of him since 1982, I conclude that his inability to

handle his business affairs date back at least a year.” Id. at 522.

Upon considering Dr. Kaplan’s testimony, this Court said “No

testimony is found that, on January 18, 1985, the deceased lacked testamentary

capacity. No evidence is found of any speech or action of dece ased from which a jury

could properly find such lack of capacity.” Id. The Court then noted, “Less mental

capacity is required to make a will than to carry on business trans actions genera lly,”

and then stated, “it is clear that the testimony of Dr. Kaplan, quoted above, is not

sufficient to justify a finding as a matter of law that the deceased was incompetent to

make a will at any time. 

We conclude that the contestant’s evidence did not shift the burden of

proof of testamentary capacity, but in any event, the proponent put forth sufficient

evidence of testamentary capacity at the time of the execution of the will to rebut any

presumption of incapa city that could have arisen. 

The contestant further argues that she offered proof of physical

impairment of Trivette’s vision and hearing, and that the proponents failed to show by

a preponderance of the evidence that Trivette was familiar with the precise provisions

of the will at the time of exe cution. 
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Where the maker of the will is aged, sick and infirm or unable to read

and write by reason of blindness or illiteracy, the proponent of the will is onerated

with the burden of showing the testator comprehended the contents of the will at the

time of execution. Burrows v. Lewis, 24 Tenn. App. 253, 142 S.W.2d 758, 763

(1940). We agree with the contestant that the proponent had the burden of proving

that Trivette knew the contents of the will. We conclude that this burden was met by a

preponderance of the evidence. T.R.A.P. Rule 13(d).

Gene Gaby, the attorney who prepared the will, testified that he met with

Trivette on June 13, 1994 and she expre ssly informed him then of what she wanted in

her will. He was satisfied that Ms. Trivette knew what property she had and the

disposition she wanted to make of it, and he prepared the will accordingly. When

Gaby met with Trivette for execution of the will on June 24, 1994, he reviewed the

will with her, although he could not remember whether he read it to her, whether

someone else read it, or whether Ms. Trivette read it. He was certain that one of the

three took place. 

Gaby then went back to the nursing home on August 31, 1994, and went

over the last will with Ms. Trivette, to the extent that he considered she knew what she

was signing. A Ms. Gammon was present when this final will, upheld by the Court,

was executed, and she remembers Trivette discussing the will with her attorney. 

Although Gammon could not remember whether the entire will was read aloud, she

testified that at least part of it was read, and Trivette told Gaby she understood what

she was doing in the will. 

The contestant argues that Trivette could not have known the provisions

in this latter will, because contestant contends that this will essentially resurrected the

provisions contained in her “first will”. There is simply no proof in the record that

Trivette was attempting to resurrect the provisions from the first will. The evidence
5

establishes by a preponderance that Trivette was familiar with the specific provisions

in both the second and third wills which she executed in June and August of 1994. 

The issue thus becomes whether the evidence preponderates against the Trial Court’s

finding the will valid.

The Trial Court held that the will dated August 31, 1994, was the last

will and testament of Edith Trivette. The standard of review in a case tried without a

jury is de novo upon the record of the Trial Court, accompanied by a presumption of

correctness of the finding, unless the preponderance of the evidenc e is otherwise. 

T.R.A.P. Rule 13(d). 

The contestant offered evidence that Trive tte had been diagnosed with

senile dementia in 1991, and that such condition worsens with time. She introduced

several hospital and nursing home documents indicating that Trivette was confused

and disoriented at times. She a lso offered evidenc e of Trivette’s unusual behavior,

and to being confused as to whom people were and forgetful. She offered evidence

that Trivette had good days and bad days, but did she not off er any evidence as to

Trivette’s capacity on the specific day of the execution of the will.

The proponent, on the other hand, offered evidence from five

disinterested persons, that Trivette had the requisite capacity to make a valid will. The

attorney Gaby testified that Trivette informed him of what she wanted in the will. She

knew what property she had and how she wanted it divided. Other witnesses,

including sta ff members at the nursing home, testified to their opinions that Trivette

possessed the requisite capacity to make a will.

The proponents presented documentary evidence that Trivette wa s alert

and oriented as to time and place, and a psychologist did find that Trivette would get

confused at times, but she would correct herself when that happened. The records

reveal that Trivette scored below the range for dementia on a test given by the
6

psychologist. The evidence preponderates that Trivette was competent to make the

will upheld by the Trial Judge.

Further, the Trial Court correctly found that there was no evidence of

undue influence upon Trivette. The contestant offered no proof of a confidential

relationship between Trivette and anyone. Nor was evidence offered of any

suspicious circumstances warranting the conclusion the will was not Trivette’s free

and independent act. 

The evidence preponderates in favor of the Trial Court’s judgment,

which we affirm, and remand the cause with cost of the appeal assessed to the

appellant.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Houston M. Goddard, P.J.

___________________________

Charles D. Susano, Jr., J.