### 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-A ppellant, ) WASH INGTO N CIRC UIT ) v. ) HON . THO MA S J. SE ELE Y, JR., ) JUDGE ROBERT L. WADDELL, GARY ) WALTERS, TRUSTEES OF SALEM ) PRE SBY TER IAN C HUR CH, ) TRUS TEES OF SALEM ) PRESBYTER

IAN CEMETERY FUND, ) RANDY HURST and RUTH ) TRIVETTE BRAY, ) AFFIRMED ) AND Defendants-Appellees. ) REMANDED

BOB McD . GREE N, Johns on City, for Pla intiff-App ellant. M. STAN LEY GIV ENS and JAC K R. CAR RIER, Johnson City, for DefendantsAppellees.

O P I N I O N Franks, J.

In this will

contest case,the Trial Judge uphel d a will without a j ury, and the contestant

has appealed. Edith Trivett

e, executed thr

ee separate will s over a period of approximately thr

ee years. The las t will was executed on August 31, 1994, and devised $1,000.00 t

o the Salem Presbyterian Church in Washington County and a diamond engagement ring to her stepdaughter, Rut h Trivette Bray. It then divided the remainder of the est

ate equally bet

ween Robert L. Waddell, Betty J ean Street, a

nd the Salem Presbyterian Church Cemeter y Fund. Robert L. Waddell, as Executor, caused2

the will to be pr

obated, and ult

imately dist

ributed the estate in accor dance with the will. Some five months af ter distr ibution of t

he estate, Bet

ty Jean Street, who had received $46,762. 27 from the estate, filed a peti

tion to contest the will,

and upon an extend ed trial, th e Trial C ourt rule d again st the co ntestan t.

At trial, the con testant offered the depos ition of Dr. R alph Lee Mills in evidence to the ef

fect that Tri

vette suffer

ed from senile dementia . The doctor test ified 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. Mill s did not see Tri vette in 1993 or 1994,

although he expected t hat her m ental an d emo tional co ndition would have d eteriora ted dur ing that t ime.

The contestant,on appeal, insi sts that t he burden of proof of testamentary capacity shift ed from the contesta

nt to the proponent

of the will upon proof of a se rious perm anent m ental impa irment.

In this regar

d, the Tennessee Supreme Court ha s said: “While evidence regarding fact

ors such as physical

weakness or disease,old age, blunt pe rception or failing mind and memory is admissible on the issue of t

estamentary capaci

ty, it i s not conclusive and the testa tor is not thereb y rendered incomp etent if her m ind is sufficient

ly sound to enable her

to know and understand what she i s doing.” In re Estate of Elam , 738 S.W.2d 1 69, 171-2 (Tenn . 1987) ( citing Am erican Tru st & Bank ing Co . v. Willia ms, 32 Tenn . App. 590 , 225 S.W .2d 79, 83 (1 948) (em phasis supplie d.) This Court, in t he Amer ican Tr ust & B anking Co. case observed: Evidence of prior mental condition may have much, li ttle or no probative value de

pending upon the nature a nd effect of t

he malady, whether general, habitual, c ontinuous, chroni c or progressive

or due merely to temporary, superficial , accidental , occasional or intermitt

ent causes or conditi

ons. If the debi

lity fal ls within the

first cat egory, evidence of the t

estator’s condition at a

time other that

the date of the execution of the wil

l may shift the bur

den of proof and requir e the production of affirmativ e proof of h is condition a t the very tim e the will was executed.3

225 S .W.2d at 84.

In this re gard, Green v. Higdon, 870 S.W.2d 513 (Tenn. A pp. 1993), considered the imp act of the deposition of a D r. Kaplan offered by th e contestant of a will. Th e docto r testified “His n iece tells m e he’s b een co nfused for mo re than a year. On examination he was obviously di soriented. He obviously has an organic mental state. In view of the history , it’s likely that he h as senile dem entia. I don’t th ink he is capable of looking a

fter his own aff

airs as long as

this present

mental state det

ention continues. . . M y conclus ion is that he m ust have h ad this prim ary dem entia Alzheim er’s Diseas e for som e years. Th e exact nu mber of y ears, I couldn ’t be certain of. Based o n my ob servations o f him since 1982, I con clude that h is inability to handle his busine ss affairs date back at least a year.” Id. at 522. Upon c onsideri

ng Dr. Kapl an’s

tes timo ny, t

his Court sai d “No testimony is found that, on January 18, 1985 , the deceased lacked testam entary capacity. No eviden ce is found of any sp eech or action of dece ased from w hich a jury could properly fi

nd such lack of capaci

ty.” Id. The Court then noted, “Les s mental capac ity is requ ired to m ake a w ill than to carry o n busin ess trans actions genera lly,” and then stated,

“it is cl ear that the t

estimony of Dr. Kaplan, quot ed above, is not sufficient to justify a finding as a matter of la w that the d eceased w as incom petent to make a will at a ny tim e.

We conclude that the conte stant’s evi dence did not shif

t the burden of proof of test

amentary capacity,but in any event, the proponent put f orth sufficient evidence of test

amentary capacity at

the time of the exec

ution of the wil

l to rebut any presum ption o f incapa city that c ould ha ve arise n.

The contestant fur

ther argues tha

t she offered pr

oof of physical impairment of Trivet

te’s vision and hearing, and t hat the proponents

failed to show by a preponderance of the

evidence that Tri

vette was famili ar with the preci se provisions of the w ill at the tim e of exe cution.4 Where the maker of the will i s aged, sick and i nfirm or unable to r

ead and write by reason of bl indness or il

literacy, the proponent of t

he will is oner

ated with the burden of showing t he testator

comprehended the contents of the will at t

he time of execu tion. Burrow s v. Lewis , 24 Tenn. App. 253, 142 S.W.2d 758, 763 (1940). We agree with the cont estant that

the proponent had the bur den of proving that Trivet

te knew the contents of the will. We conclude t hat this burde

n was met by a preponderance of the evidence. T.R.A .P. Rule 13(d).

Gene G aby, the attorney w ho prepa red the w ill, testified that he m et with Trivette on June 13, 1 994 and she expre ssly informed him then o f what sh e wanted in her will. He was sat

isfied that

Ms. Trivette knew what proper ty she had and t

he disposition she wanted to make of it,and he prepared the wil l accordingly . When Gaby met with Trivet

te for executi on 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. Trivet

te read it.He was certain that one of the three too k place
.

Gaby then went back to t he nursing home on August 31, 1994, and went over the last

will with Ms. Trivet

te, to the e

xtent that he

considered she knew what she was signin g. A M s. Gamm on was p resent wh en this final w ill, upheld by the C ourt,

was ex ecuted , and sh e reme mbers Trivette discuss ing the w ill with h er attorn ey. Although Gammon could not remember whether the ent ire will was rea

d aloud, she testified that at least part of i t was read, and Trive

tte told Gaby

she understood what she w as doin g in the w ill.

The contestant ar

gues that Trivet

te could not have known the pr ovisions in this la tter will , because contest ant contends that

this will e ssentiall

y resurre cted the provisions cont

ained in her “fi

rst will”. There is simply no proof in the recor

d that Trivette was att

empting to resur

rect the provi sions from the fir st will. The evi

dence5

establishe s by a preponderanc e that Trivet te was familiar wit

h the specific pr

ovisions in both the seco nd and third w ills whic h she ex ecuted in June and A ugust o f 1994
. The issue thus beco mes whether the evidence prepon derates against the Trial Cou rt’s finding the will

valid. The Trial Court held that the will dated August 31, 1994, was the last will and testa ment of E dith Trivette. T he standard of review in a case tried without a jury is de novo upon the record of the Tr ial Court, ac companied by a presumpt ion of correct ness of the find ing, unl ess the p repond erance of the e videnc e is othe rwise. T.R.A .P. Rule 13(d).

The con testant offe red eviden ce that Trive tte had been diagnose d with senile dementi a in 1991, and that such condition worsens with time. She i

ntroduced several hospit

al and nursing home documents i ndicating tha

t Trivette was confused and disoriented at times. She a lso offered evidenc e of Trivette’s unusual b ehavior, and to being confused as t o whom people were and forgetful. She of fered evidence that Trivette h ad good days and ba d days, but did s he not off er any eviden ce as to Trivette’s ca pacity on the sp ecific day of th e execution of the will.

The proponent, on the ot her hand, offered evidence from five disintere sted persons, that Trivet te had the requisite capacit y to make a valid will. The attorney Gaby testif

ied that Trivette informed hi m of what she wanted in the will . She knew what property she had and how she w anted it divided. Other witnesses, including sta ff mem bers at the nu rsing hom e, testified to the ir opinions th at Trivette possessed the requisite c apacity to mak e a will.

The propone nts presented docum entary evidence that Trivette wa s alert and oriented as t

o time and place, a

nd a psychologist did find that Trivette would get confused at times,

but she would correct

herself when that happe ned. The records reveal that Tr

ivette scor

ed below the range for dementia on a test given by the6

psychologist. The evidence pre ponderates that

Trivette was competent to make the will upheld by

the Trial Judge. Further, the

Trial Court corr

ectly found t

hat there was no evidenc e of undue influence upon Trivet te. The contest

ant offered no proof of a confi dential relationship between Trivett e and anyone. Nor was evidenc e offered of any suspicious ci

rcumstances warrant

ing the conclusion the will was not Tri vette’s fre

e and ind epend ent act.

The evid ence prep onderates in favor of th e Trial Co urt’s judgm ent, which we affirm, and remand the caus e with cost of the appe al assessed t o the appellant.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ Charles D. Susano, Jr., J.