# FILED May 19, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

JAMES A. HELM and J UDY NELSON, ) C/A NO. 03A01-9710-PB-00497

) Plaintiffs-Appellants, ) CUMBERLAND PROBATE AND ) FAMILY COURT v. ) ) HON. J AMES A. BEAN, HELEN A. HAYES and HARRY ) JUDGE SABINE, ) ) AFFI RMED AND Defendants-Appellees. ) REMANDED

DUDLE Y W. TAY LOR, THE TAYLO R LAW FIRM, Knoxville, for PlaintiffsAppellants. JOE M. LO ONEY, LO ONEY & LOONE Y, Crossville, for Defendants-Appellees.

O P I N I

O N Franks, J.
After the w ill of the testatrix M ildred L. Fin k had bee n admitted to probate, plai

ntiffs, chi

ldren of deceased,filed this action contest

ing the validi

ty of the will, alleging th at “she lack ed testame ntary capacity” to m ake a will.

The testatri

x, at the ti

me she executed her will , advised her at torney tha

t she had no child ren and a statem ent to tha t effec t was in corpor ated into her wil l. Plaintiffs assert that

this establ

ishes that t

he testatr ix was suffering from an i nsane delusion, and the W ill should be declared void. A fter an evidentiary hearing before the Judge without a j ury, the Trial Judge rul

ed that the Will

was valid, by

concluding the testatrix had the requisite tes tamentary cap acity to make a Will.1 The will was executed on March 17, 1994, an d testatrix died on February 25, 1995.
2 The order of the Probate Court admitting the will to probate, was pri ma facie evidence of the valid ity of the will, 1 and the burden shift ed to opponents of the will to p rove th at the T estatrix w as of u nsoun d mind
. See Matlock v. Simpson , 902 S.W.2d 3 84; Harper v. Watkins , 670 S .W.2d 611, 62 8 (Ten n. App . 1983)
.

The courts of this

state have recogni

zed that a person suffering from an insane delu sion that ma terially influences the disposition s made in th eir wills wo uld be a basis to void such wills. This Court has explained an insane delusion thus:

A person is possessed of a delusion - tha

t is, an i nsane delusion - when he conceives somethi

ng extravagant or unr

easonable to exist which has no existence except

in his own abnormal imagina tion, but havi

ng once conceived the thi

ng or conditioned t

o exist, i t is impossi

ble to reason him out of it. Melody v. Ham blin , et al. , 21 Te nn. Ap p. 687, 7 01 (19 37). Accord: Gass’ Heirs v. Gass’ Executors , 22 Tenn. 278 at 28 3-4 (1842).

Plaintiffs made out a prima fac ie case that the t estatri x was suffering from a delusion, t

hat is, t he statement t

o her attorney

and in her will t

hat she had no children. The pr

oponents of the will

then offered evidence f rom the preparer of t

he will, witnes s to the will , the test atrix’s t reating phy sician and testatrix’ s sisters that convinced the Trial

Judge that the t

estatri x was not suffering from a del usion at the time she execu ted her w ill.

The issue thus becomes whether the evidence preponder ates against

the finding s of the Trial Ju dge. T .R.A.P . Rule 1 3(d).

The evid ence estab lished that the testatrix aban doned h er two ch ildren in the early 1950's when they were a ges 5 and 6, and their

abusive father t

ook them and placed them in a fost

er home. The testat

rix had no further

contact with t

hese children throughout the r

emainder of her li

fe, except she was approa ched by the son i

n the3

1980's when she told hi m she had no children. The at torney who prepared the testatrix’s will testif ied that after h er death he learned tha t she did hav e children, an d it was his opinion “tha

t she deliber

ately chose not to tell

me the truth” about

having children. The t

estatri x’s sister testified at length about having numerous conversat ions with the testa trix about the se children o ver the years, an d that the testatrix would enquire about them periodically. She test ified as follows: Q. Did you speak with her [testatr ix] with some degree of fr equency right up unti

l the time she di

ed in February of

1995? A. Yes. Q. Did you continue t o discuss family

matters with her

in many of those conversations? A. Yes. Q. And by family matters, did that also include discussion of these children? A. Yes. The testatrix’ personal p hysician, the on ly expert to testify, said th at to a reason able degree of medical ce rtainty, he had no reason to b elieve that she “could no t direct a will in a competent

manner”. The Trial Judge found the sister

, Mrs. Partin,

credible, and relied upon her t

estimony i

n finding that t

he testatr ix was not suffering f

rom an insane delusion. He stated:

So, based on what Mrs. Parti n testified to, obviousl

y the test atrix knew she had children,acknowledged she had childr en, but for some reas on, chose no t to make th em bene ficiaries in her will. When we look to another item, we can all speculate that perhaps as a result of her hos

pitaliza tion with a nervous

breakdown that this

blocked her knowledge of these chi ldren. However, I t

hink that’s r

efuted by Mrs . Par tin’s testim ony. Also, the Judge rel

ied on the doctor’ s testimony to buttress

his finding. We conclude the evidence does not preponderate agai

nst the Trial Court’s finding t

hat at the t

ime of the execution of the Will the t

estatri x knew of the4

existence of her t

wo children, and was ther efore not sufferi

ng from an insane delusion which wo uld void her Will. T.R.A .P. Rule 13(d).

The judgment of the Trial Court is affir

med and the cause remanded, with the cost of the appeal assessed to appellants.

__________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.