### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON November 27,

2000 Session IN RE: ESTATE OF ANNIE CLARE HAMILTON, ET AL 

### . v. WALTER

DEWITT MORRIS, ET AL 

### . A Direct Appeal from the Chancery Court for Dyer County No. 97P111 The Honorable J. Steven Stafford, Judge

No. W1998-00191-COA-R3-CV - Filed February 13, 2001

Proponents

of 1992 will of testatrix offered the will for probate, and three beneficiaries of testatrix’s 1987 will filed a complaint contesting the 1992 will. Proponents of the 1992 will filed a response to the complaint

contesting the 1992 will which, inter alia , denies that the 1987 will is the last w ill andtestament of the testatrix. The chancellor granted summary judg

ment against the

proponents

of the 1992 will, holding that the will was void by virtue of propon

ents’ und ue influe nce on tes tatrix. The chancellor also granted summary judgment for r esidu ary benefi ciary of the 1987 will and admitted the 1987 will to prob ate as the la

st will and testament of the testatrix. Appellants, the proponents of the 1992 will and contestants of the 1987 will, have appealed. Tenn.R.App.P. 3; A

ppeal as of Right; Judgm ent of the Chancery

Court Affirmed and Remanded
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and H OLLY K IRBY L ILLARD , J., joined. Thomas H. Strawn, D

yersburg, William S. Hollis, L exington, South Caro

lina, For Appella

nts Wilkerson Gauld in & Ha yes, Dyer sburg , For A ppell ees, K ather ine Ev ans an d Joh n E. Ga uldi n, III Olie Phillips, Jackson, For Appellees, Olie Phillips, Virginia Lamb and Mary Sugg Baker Conley Campbe

ll Moss Smith, Union City , For Appellee F

reed-Hardema

n University
OPINION
This is a wil l contest c ase involv

ing two wi

lls of Anni

e Clare Ha

milton, Te

statrix. Appellants,Walter

Dewitt Morris and Jo Ann Morris Holton, brother and sister, and blood relatives o f the Testatrix, are beneficiaries under Testatrix’s 1992 will (the “1992 Will”). Appellees , Katherine G. Evans, John E. Gauldin, III, and Fr eed-Hardeman

University, are beneficiaries under1 We note that t he Phillips Street Church of Christ was

also a bene ficiary under the 1987 w ill, but appare ntly did not seek to s

hare in Ms. Hamilton’ s estate and i s not a party to this cas e. 2 The rec ord indica tes that Attorne y Ray Ashley d rafted the 19 87 W ill.
3 Ms. Ham ilton was not present when M r. Palmer prepare d the 1992 W ill in his offices. -2- Testatrix’s 1987 will (the “1987 Will”) 1 . Appellees challenged the validity of the 1992 Will based, inter alia , on the undue influen ce of Appellants

. Appellants likewise challenged the validity of the 1987 Will based on the undue influence of Attorn ey Ji mmy Evans, another beneficiary under the 1987 Will.
From a review of the v

oluminous record,

whic h revea ls what can be des cribed as a labyrinthin

e procedural pr

ocess, we glea

n the following sa

lient facts:
When Annie Clare Hamilton di ed in 199 7, she left an estate valued at over $1,000,000. During her lifetime, Ms. Hamilton executed four (4) wills, of which only the last two, the 1987 and 1992 Wills, are at issue here. The 1987 Will left a large portion of Ms. Hamilton’s estate to Attorney Jimmy Evans, who was apparently Ms. Hamilton’s friend and advisor. Mr. Evans did not draft the 1987 Will. 2
Before Ms. Hamilton ex ecuted her 1992 Will on October 13, 1992, she partially executed a codicil to the 1987 Will on May 30, 1992. The record indicates that Attorney John Palmer drafted the Codicil

according to Ms. Hamilton’s wishes. In his deposition, Mr. Palmer testified that after Ms. Hamilton signed th

e Codicil, he aske

d her “if it was he

r intent to

delete Evans a

nd add her relatives to her Will.” Ms. Hamilton apparently responded, “I don’t want to take Jim Evans out!” Ms. Hamilton never fully executed the document. Then, on October 13, 1992, Ms. Hamilton executed a Will which left the bulk of her estate to Appellants, while leaving Mr. Evans only $25,000 “for services rendered,” a fra ction of the total bequeststo Evans in the 1987 Will. Mr. Palmer drafted the 1992 Will but had nothing to do with its execution. 3
The trial court granted Appellees’ Motion for Summary Judgm

ent which sought t

o invalidate the 1992 Will for undue influence. The court found that a confidential relationship existed between Ms. Hamilton and the

Appellants: Again, in order to begin theproper analysis of this case,since undue influence is

alleged, we mus

t first ascertain

whether there was a confidential relationship. . . . I believe it was May of 1992, that Mr. Morris and Mrs. Holton were gra nted an unrestricted Power of Attorney along with Jimmy

Mann Evans. Mr. Palmer discussed that in depth in his deposition. Based upon that fact, and based upon the fact that any prior wills that had been executed by

Mrs. Annie Clare-3- Hamilton did not leave any gifts to Mr. Morris and Mrs. Holton, The Courthas determined

that in fact a con

fidential relatio

nship did exist between Mr. Morris, Mrs. Holton and Annie Clare Hamilton.
The trial court found no evidence that Mrs. Hamilton received any independent leg al advice regarding the 1992 Will, and note

d that the terms

of that will were inconsistent with Mrs. Hamilton’s earlier wills and with her c

omments at the fail

ed execution of the

Codicil. Based up

on these findings, the trial court held the 1992 Will to be a product of the undue influence of Appellants Morris and Holton. Having invalidated the 19 92 Will, the trial court granted App ellee Freed-Hardeman’s Motion for Summary Judgment as to the 1987 Will, ruling that Appellants had no standing to contest the will. The trial court then admitted the 1987 Will to probate. The court explained:

[B]ased upon the proof presented and the recitation of the facts which are uncontroverted

for purposes of th

is motion - - And that is , that Mr. Evans, for purpo ses of this motion, exerted undue influence on the test ator - - The Court finds that this part

ial invalidity

as t o an y gifts made to Mr. Evans or to Mr. Eva ns’ family w

ould not invalidate the Will. Ms. Hamilton went to great lengths in this particular case by providing that

any gift that proved to be invalid would pass to the residuary beneficiary

. There’s been no proof in this case, . . . that eithe rFreedHardeman or the Phillips Street Churc

h of Christ did anything improper, or that Jimmy Evans was their agent. . . . If y ou strike out any gifts made to Mr. E vans or h is family, the

Will still pro vid es f or t he t rans fer o f al l of Ms. Ham ilt on’ s pr ope rty.
* * * So, in essence, The Court is finding that as a matter of law the Will, the 1987 Will of Annie Clare Hamilton, is a

valid document. And The Court is also finding, as a matter of law, that an y partia l intestacy that may be caused by any undue influence on the p art of Jimmy Evans in

having this Will dra

fted would

not revoke the Will nor would it

have any e

ffect upon any

gift made to

Freed Hardeman University

or Phillips Street Church of C hrist for the simple reason there is no connection that’s been shown, no agency, no relationship of any kind.
The trial court made its judgment for Freed-Ha rdeman and t he admission of the 1987 Will to probate, a final judgment pursuant to Tenn.R.Civ.P. 54.02. Mr. Morris and Ms. Holton appeal the trial court’s orders granting summary judgment on the 1992 Will and the 1987 Will, as well at the court’s order admitting the 1987 Will to probate.-4-

We believe the issues presented in this case are: (1) Whether the trial court erred in granting summary judgment invalidating the 1992 Will; (2) Whether the trial court erred in admitti ng the 1987 Will to probate; (3) Whether the Appellants have stan ding to contes t the 1987 Will; (4) Whether the trial court pr

operly foun

d that allo wing Testatrix’s attorn ey to testify

did not violate attorney-client

privilege; and(5) Whether the trial court erred in denying Appellants’ motion for a new trial based on newly discovered evidence.
A motion for

summary judgment should only be gra nted when the movant demonstrates that there are no genuine issue s of material fac

t and that the moving

party is ent

itled toa judgment as a matter of law. Tenn. R. Civ . P. 56.03. The part y moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. See Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest le

gitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that part y, and discard all countervailing evidence. S ee id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated:
Once it is shown by the moving party that there is no g enuine issue of

material fact, the nonmoving party must then demonst rate, by affidavits or discovery materials, that there is a genuine, material fact di spute to warrant a trial. In this regard, Rule 56.05 pr ovides that the nonmoving party cann

ot simply rely

upon his pleadings but mus t set forth specific facts

showing that there is a genuine issue of material fact f

or trial. Id. at 210-11 (citations omitted) (emphasis in original). Summary judgment is only

appropriate whe

n the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. See Car

vell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is

no presumption of c

orrectness

regarding a trial court's grant of summary judgment. See Bain , 936 S.W.2d at 622. Therefore, our review of the trial court’s gr

ant of summary

judgment is de novo on the record before this Court. See Warren v. Estate of Kirk , 954 S.W.2d 722, 723 (Tenn. 1997).
Attorney-Client Privilege
B ecause ou r holding vis-a-vis the 1992 Will is dependent upon the testimony of Attorney Palmer, we address the issue of attorney-client privilege first. Appellants asser tthat the trial court erred in ordering Attorney John Palmer to testify about what they claim are “privileged facts.” The y claim that, when they

communicated Ms. Hamilton’s wishes regarding the 1992 Will to Mr. Palmer, they were acting a

s her agents

and areentitled to assert attorney-client privilege. Appellants direct us to the case of Swindler & Berlin v. U.S. , 524 U.S. 399 (1998), in which the United States Supreme Court held that the a

ttorney-c lient privilege s

urvives the death

of the client. While we do notdispute the holding in Swindler , we do not believe that case addresses the issues the instant case presents.-5-

In Swindler , the United States S upreme Court was a

sked torule on whether the Office of the Independent

Counsel, through a g rand j ury, could subpoena notes Attorney James Hamilton took during his meeting with Deputy White House Counsel, Vincent W. Foster, Jr. See id. at 401. Mr. Foster consulted Mr. Ham

ilton, an attorney

with Swindler & B erlin, to discuss legal representation regarding investigations into the White House Travel Office scandal. See id. In Swindler , the Court engages in a lengthy

dis cussion o f the attorney -client privileg

e, and notes that th

e majority jurisdictions addressing the privilege have done so in the context of testamentary law. See id. at 404. The Court noted that most courts presume that the privilege survives the death of the client, but they view testamentary disclosure of communications as an exception to the privilege. Id. The Swindler Court quoted from United States v. Osbo rne , 561 F.2d 1334, 1340 (9th Cir. 1977): [T]he general rule with respect to confidential communications . . . is that such communications are privileged during the testator’s lifeti me a nd, also, after the testator’s death unless sought to be disclosed i n litigation between the testator’s heirs. . . .
524 U. S. at 405 (ci tatio ns omitted). The Court went on to say that, “The rationale for such disclosure is that it furthers the client’s intent.” Id.
The parties have not cited, nor has our research revealed, a Tennessee case dealing with the precise point before us. Ho wever, although “theprivilege accorded certain communications between . . . attorney

and client, has be

en long and fre

quently uphe

ld by the Cour

ts of this State, it ha

s also been frequently recognized that there are many excepti

ons to this privilege.” Hazlett v. Bryant, 241 S.W.2d 121, 123 (Tenn. 1951).
In Glover v. Patten , 165 U.S. 394 (1897), a case which has notbeen overruled in over onehundredyears, the United States Supreme Court set out what we believe is the app

licable rule in

the case at bar:

. . . we are of the o pinion that, in a suit between the devisees under a will, statements made by the deceased t o counsel respectin

g the execution of the will, or other similar document, are not privileged

. While such comm

uni cations might be privileged if offered by third persons to establi

sh claims against an estate, they are not within the reasonof the rule requiring their exclusion, when the c ontest is between the heirs or ne

xt of kin. 165 U.S. at 406 (emphasis added).
81 Am.Jur.2d Witnesses § 389 states: Factors affecting applicability; client’s death-6- Where the client is dead and the controversy arises co nce rning the validity of the deceased client’s wi ll, or between the cla

imants thereunder, no pri vi lege exists as to communications between the testator and his att orney concernin g th e drafting of a will. Thus, communications by a client t o the attorney

who drafted his wi

ll, conc erning the will and transactions leading to its execution, generally are not, a fter the client’s death, protected as privileged communications in a suit between the tes tator’s heirs, devisees, or other parties who claim under

him, although there is authority for the proposition that the pr ivilege protecting a client’s communi cations to the attorney w

ho drew his will may

be invoked aga

inst claimants adverse to the int

erests of the clie

nt, his estate, or h

is successors. Appella nts assertthat this is an “inter-dispute” between heirs and/or devisees versus nonheirs and/or non-devisees, and that, therefore, the attorney- client privilege

is not waived. We must disagree. The allowance of the exception is to help establish the intent of th e testatrix or testator, andwe can see no reason for a distinction made by Appellants as to the disputes betw een those designated

as heirs, devisees, non-h eirs, or non-devisees. The testamentary exception should be applied to such disputes concerning all potential beneficiaries.
The 1992 Will Appellants

next contend that the trial court erred in granting summary judgment in

favor of the Appellees on the issue of validity of the 1992 Will. We have said that “[i]nvalidat ing a wil l because of undue influence is generally not a simple undertaking.” Mitchell v. Smith , 779 S.W.2d 384, 388 (Tenn. Ct. App. 1989). The most common way of establishing th e existence of undue in fluence is “by proving the existence of suspicious circumstances warranting the conclusion t ha t the will was not the testator’s free and independent act.” Id. Three of the mo st f requ ent ly relied upon “suspicious” circumstances are: (1 ) a confid ential relationship between the testator and the ben efi cia ry; (2) the tes ta tor’s poor physical or mental condition; and (3) the beneficiary’s involvement in the procurement of the will in question. See id.

Other reco gniz ed suspicious circumstances include: (1) secrecy concerning the

will's existence;

(2) the testator'

s adva nced age; (3) the lack of independent advice in preparing the will; (4) the testator's illiteracy

or blindness; (5) the unjust or unnatural nature of the will's terms; (6) the testator being in an emot ion all y d istraught state; (7) discrepancies between the will and the testator's expressed intentions; and (8) fraud or duress directed toward the testator. Id.4 In her deposition, M argaret Smith said she believed that Ms. Hamilton executed the 1992 Will under pressure from Mr. Morris, a

nd test ified t hat Mr. Morris

was prese

nt at t he Will’s

executi on and asked her to wit ness th e 1992 Will. In Taliaferro v. Green , 622 S.W.2d 829, 837 , this Court noted that, al though a presumption of undue influence
w ill not gener ally arise just bec ause a ben eficiary acts as a “m ere messen ger betwee n the testator an d the testator’s attorney,” this rule “does n ot apply where there has been any activity dir

ectly connected with the actual execution of the will.” The Taliaferr

o Court went on to note that t here was e

vidence t

hat the benefic iary was present at the e xecution of the wi ll in question ; a fact which, when combined with the benefi ciary’s close famil

y relationship to the t

estator, “could have led t

he jury to det

ermine that t

here was undue inf

luence.” Id. -7- Under Tennessee law, as i n most jurisdictions, a presumption of undue influence arises where the dominant party

in a confidential

relationship rec

eives a benefit

from the ot her party. See Matlock v. Simpson , 902 S.W.2d 384, 386 (Tenn. 1995) ; Crain v. Brown , 823 S.W.2d 187, 194 (Tenn. Ct. App. 1991). A person who is “au thorized to act on behalf of another by virtue of an unrestricted

power of attorne

y has a conf

idential relati

ons hip with the person who executed the power of attorney.” Mitchell , 779 S.W.2d at 389. Only where thedominant party can show that the transaction was fair by

clear and convi

ncing evidence

, can that party

overcome

the presumption of undue influence. See id. In the case o f a will contest, that evidence can be that the testator received independent, legal advice concerning the contents of the will. See Crain , 823 S.W.2d at 194.
The basis of the trial co urt’s ruling in this case is that Appellants were involved in a confidential relationship w it h Ms. Hamilton and tha t the 1992 Will was a pr

oduct of Appellan

ts’ undue influence. We agree. The trial court found that a confidential relationship existed between Ms. Hamilton, Mr. Morris and Ms. Holton by way of a g eneral power of attorney, and found that no evidence was presented

to determine the fairness of the transaction. In its findings, the court said:
There is no evidence to show that this transaction was fair. There is no evidence to show t

hat there was an

y independe

nt legal a dvice givento Annie Claire Ha milton or that she ha

d the opportu

nity for any independent legal advice.
In fa ct, the evidence

tends to show that the

1992 Will, if an ything. . . was contrary to her wishes by the statement she made when she failed to execute the Codicil in June of 1992. . . .
There was no evidenceto rebut the presumption of undue influence as to the 1992 Will, let alone clear and convi

ncing evidence. Almo st all the factors enum erated above wh

ich give rise to the presumption of

undue influen ce are present in this case: 1) the Appellants were involved in a confidential relationship with the Testatrix, as her attorneys i

n fact; (2) the Testatrix was not in the best of physical

health; (3) Mr. Mo

rris was involved in the procurement of the will in question 4 ; (4) the Testatrix was very old at the time she executed the 1992 Wil

l; (5) there is

no evidence that the Testatrix received independent advice in preparing the19 92 Wil l and; (6) there are discrepancies betweenthe 1992 Will and the T estatrix’s intention

s as expressed at th

e faile d exec ution of the Codicil.-8-

In their brief, Appellants point to Attorney Palmer’sdeposition for the proposition that Mr. Palmer drafted the 1992 Will

out of the presence of Appellant Morris. Appellants also claim that Mr. Palm er met with t he Tes tatri x “mu ltip le tim es pri vatel y and ful ly regar ding h er 199 2 Wil l.” If anything, we believe Mr. Pa

lmer’s deposition s

upports the contra

ry propositi

on on both counts:
Mr. Smith: Did you prepare or did your of fice type Exhibit #3, the purported Will, prior to October 13, 1992?
Mr. Palmer: Well, the way my note rea

ds, I am not sur

e. It say s, “I have dictated proposed short Wills for them to discuss withMrs. Hamilto

n.” It uses the word plural. So, I may, basedon some phone conversation, I may have prepared - -
* * *
Mr. Smith: Who was present with M r. Morris w

hen he cam e to your offic e to retrieve tha

t document?
Mr. Palmer: I don’t have a recollection of

that.
Mr. Smith: Do you recall your conver sat ion with him on t hat date?
Mr. Palmer: I do not.
Mr. Smith: The n is it my understanding that your prepar at ion o f that document was based upon the direction you received from Sl

ater Hollis?
Mr. Palmer: No, I think I probably. I would have talked toWalter [Morris]. Accor din g to my note it looks like, based on some phone conversations, I probably prepar ed more than one Will. Because they started out talking about just cancel

ling all prior Wills.
Mr. Smith: Tha t’s wha t I un ders too d you r no tes to s ay. Mr. Palmer: I

assume I prepared more tha n one. I think t

hat I probably talked to Walter when he came in. He told me no. He pro bably said, “well, this is what Mr s. Hamilton wants.”

Based o

n what he

told me , I probably went ahead a

nd handed him this Will.-9-

(emphasis

added). Lat

er in his deposition, Mr. Palmer indicated that, although he drafted the 1992 Will, it was not his “style.”

Mr. Palmer: It’s not my style but some

body obviousl

y had told me to, you know, do

somet hing short and to th e point. Ord ina ril y, I’d

put more information in there. Like I would have the statutory pow er s and some other things. And that’s not in here. I don’t know why that is.
The record establishes that Mr. Palmer later s ought to withdraw

from the effort t

o probate the 1992 Will. In a letter

from Mr. Palmer to Mr. Hollis dated March 15, 1995, Mr. Palmer wrote:
As I have stated to

you previou

sly, I do not feel comforta

ble in participating in an effort to probate Mrs. Hamilton’s Will of October 13, 1992. I am not comfor ta ble with the appearance of the Will itself insofar as

the signature of

Mrs. Hamilton is

conce rned; I amnot comfortable w

ith statements Mrs.

Lamb has made; and

I feel certain that probate of th

is Will w ill be contested and that I will be called as a witne

ss. In his deposition, Mr. Palmer explained his discomfort with probating the 1992 Will. He said, “ I didn’t like being asked to prepare papers for a probate before somebody dies.”
In their brief, Appellants appear to argue that the legal presumption of undue influence does notarise where the rela

tionship between th

e parties is one of

“close family.” While we agree that this statement correctly represents Tennessee law, we do not believe that the relationship between the Testatrix and Appe

llants can be cha

racterized as on

e of “clo se family.” The Tennessee cases which address this issue mostly deal with husband-wife and parent-child relationships. Se e, e .g., Kelly v. Allen , 558 S.W.2d 845, 848 (Tenn. 1977)(parent-child relationship); Hammond v. Union Planter s National Bank , 222 S.W.2d 377, 383 (Tenn. 1949)(husband-wife relationship); Bills v . Lindsay , 909 S.W.2d 434, 440 (Tenn. Ct. App. 1993)(parent-child relationship). One case, Solari v. Albertine , 193 S.W.2d 111 (Tenn. Ct. App. 1945), ad dresse s the grandpar ent-grandchi

ld relationship. However, the Solari Courtgoes to great lengths to explain that the grandmother had raisedher granddaughter

after the granddaughter was orphaned, and that the granddaughter moved back into her grandmother’s home following her grandmother’s stroke to care for the ailing woman. See id. at 144-15. Appellants

cite another case, Hollis v. Thomas , 303 S.W.2d 751 (Tenn. Ct. App. 1957), as support for the argument that the mere existen ce of a power of attorney will not raise the pr esumption of undue influence unless that power of attorney is utilized. While the Hollis Court does note that the beneficiary under the challenged w ill “never made any use of the aut hori ty granted,” the Court rests its de cision that no pres

umption of undue inf

luence arose on

the fact that,-10-

although the beneficiar

y was “only

a foster child,” the relationship between the parties “was that of parent and child.” Id. at 760. In the instant case, Appellants are the children of Testatrix’s cousin - hardly the type of r

elationship

the cases above contemplate. Given that Appellants themselves have indicatedthat they only visited the Te statrix three or fo ur times a ye

ar, there appe

ars to be little evidence that would render the situation in the case at bar similar to the situation in Solari

. E ven a ssuming, arguendo , that Appellants di d have the ty

pe of close family

relationship Tennessee courts contemplate, we believe that the existence of

the suspicious circumstances above is enough to raise the presumption. As this Court noted in Taliaferro :

Where, however, the contestant shows the e xisten ce of suspicious circumstances such as a confidential rel ationship in combina tion with the beneficiary

's involvement in

procuring the will, or

in combination withimpair

ment of the testator's mental capacity, there arises the presumption of fraud or undue influence. . .
622 S.W.2d at 835-36 (emphasis added). See also Mitchell , 779 S.W.2d at 389-90 (noting that, even withoutevidence of the confidential relationship between beneficiary

and testator, “th

e contestants introduced evidence of

enough other suspicious circumstances to create a jury issue.”) Even if the Appellants

held no power

of attorney

for the Testatrix, t

here is ample evi

dence to be found

in this record which supports the presumption of undue influence as to th e 1992 Will. For thes

e reasons, we hold thatthe trial court correctly granted Appellees’ Motion for Summary Judgment based on the unrebutted presumption of undue influence.
The 1987 Will Appellants

next urge us to hold that the trial court incorrectly granted Appellees’ Motion for Summary Judgment which ultimately led to the admission of 1987 Wil l to probate. The thrust of Appellants’ argument is that, since the trial court found there was a presumption of undue influence as to the bequests to A

ttorney Eva

ns, the entire will

should be declared inv alid. Based upon our review of the law of wills in Tennessee, we affirm the trial court’s ruling and hold that a presumption of undue influence does not invalidate gifts to “innocent” beneficiaries under the will in question.
Whether a trial court may invalidate only that portion of a will which i s tainted by undue influence appears to be an issue of first impression in Tennessee. There are, however, cases which addressthe partial invalidity of wills under

circumstances other than undue influence. For example, in Ross v. Stiff

, 338 S.W.2d 244 (Tenn. Ct. App. 1959), this Court addresseda will in which some of the bequests were void under the Rule Against Perpetuities. The Ross Court wrote:

Since we hold that § 13 a nd § 14 of the will are void for remoteness,

there remains then but a consideration of the consequences of this action. As indica ted in Armstrong v. Douglass , 89 Tenn. 219, 14 S.W. 604, 10 L.R.A. 85, the primary testamentary-11- inte nt of a testator will not necessarily be pulled down by the in valid ation of one or more of the provisions by which that general intent is manifested. This will only result when it appears that the invalid limitation is such an essential part of the general scheme of the will that the several parts of the devise are inse

parable and the whole must be adjudged void. Id. at 251 (emphasis added). See also Armstrong v. Dou glass , 14 S.W. 604 (Tenn. 1890).
In keeping with ca

ses such as Ross , we believe that the correct rule regard in g invalidating a will for undue influence is clearly stated in 1 Pritchard on the Law of Wills and Administration of Estates § 128 (5th ed. 1994):

§ 128. Fraud and

undue influence do not nec essarily invalidate whole will.
If the fraud or undu

e influence by

which a will i s p rocured extends to t he w hol e wi ll, alt hou gh co mmi tte d by o nly one of t he several beneficiaries , or even though the person benef

itted is entirely innocent of any participation in it, or if the provisions affected by the fraud be inseparable from the

rest, the whole will is void. But if the fraud extends only to a p art of the will whic h is of a separabl

e character, the portions not so affected will be good.
Such partial invalidation is supported by the rule that “[u]ndue influence presupposes a mind of testamentary

capacity.” Parham v. Walker , 568 S.W.2d 622, 624 (T enn. Ct. App. 1978) . To totally invalidate a will for the undue influence of one beneficia

ry where t he evidence stro

ngly points t

o the innocence of the other beneficiaries would be inconsonant with the above rule.
In the case at bar, we find noevid ence that would ju stify making

an exception to the r

ule regarding part ial inv ali dit y. There is evidence in the record of Testatrix’s intent to leave money

to Freed-Hardeman

and the other Appe

llees. Appellants

presen ted no evidence that any of the beneficiaries other than possibly Jimmy Evans exerted undue influence upon Ms. Hamilton, and the s ections in the 1987 Will relating to Jimmy Evans are clearly separa ble from those rel ating to the other beneficia

ries.
Fin all y, an d perhaps most importantly, we must construe the 1987 Will in light of the statutory and common law presumption against intestacy. See, e.g., T.C.A. § 3 2-3-101 (1984); Putnam v. Robertson , 205 S.W. 309, 312 (Tenn. 1918); In re Tipler , 10 S.W.3d 244, 249 (Tenn. Ct. App. 1998); Chaille v. Warren , 635 S.W.2d 700, 702 (Tenn. Ct. App. 1982). Ms. Hamilton’s 1987 Will provides for the distribution of all of her property, and expressly provide s thatif a gift to any specific benef

iciary is re

voked, their bene

fits pass under the residuary clause. To hold her 1987-12-

Will i nvalid , we would clear ly overlook M

s. Hamilton’s clea

r expression of inte

nt not to die intestate, as well as the law as it exists in Tennessee. Standing The next issue this case presents is that of standing. We believe this issuecan be resolved by clearing up what we perceive as confusion regarding the trial court’s use of the term, “standing.” Subsequent

to its ruling that there was undue influence as to gifts in the 1987 Will to Jimmy Evans, the trial court found:

. . . The Court is finding that as a matter of law the Will, the 1987 Will of Annie Clare Hamilton, is a valid document. And The Court is also finding, as a matter of law, that any partial intestacy that

may be caus ed b y any u ndue infl uence on the par t of Jimmy Evans i

n having this Will drafted would not revoke the Will nor would it have any effect upon any gift made to Freed Hardeman Univer sity or Phillips Street Church of Christ for the simple reason there is no connection that’s been shown, no agency, no relationship of any kind. As I stated earlier, there have been no allegations made that Ms. Hamilton lacked capacity, that this Will was procured by f raud, or that there were any other problems with the Will or it’s [sic] execution. The only assertion t hat has been made is the undue influence on behalf

of Mr. Evans, and TheCourt finds that that does not rise to a level s

ufficient to inval

idate the 1987 Will. The Court’s going to grant your Motion for Summary Judgment

as to the standing issue which wo uld be dispositive of th

is case. (emphasis added).
The trial court

found, as a matter of law , that any undue influence of Jimmy Evans did not invali da te the 1987 Will. The 198 7 Will, as noted above

, made provision fo

r invalidated gi

fts. Because of the way the 1987 Will was drafted, the only mea ns by which the

Appellants

could share in Ms. Hamilton’s esta

te was if th

e tr ial court invalidated the entire 1987 Will. Since Appe llants failedto persuade the trial court that, as a matter of law, Evans exerted u ndue influence that inv alida ted the entire 1987 Will, the court, given its ruling on the legal question, found that Appellants

had no basis, or “s

tanding,” to

further contest the Will. Since the trial court found that any undue influence on the part of Evans would have no effect on the residuary clause, the cour t correctly ruled that this tota

lly eliminate

d Appellants

as beneficiaries of Ms. Hamilton’s estate and, thus, they lacked “standing” to recover.
New Evidence-13-

Fin all y, we affirm the trial court’s denial of Appellants’ Motion for a New Trial. That motion was based upon alleged new evidence regarding the execution of th e 1987 Will. Howeve r, in reviewing the record in this case, we do not be

lieve that A ppellants’ evidence regarding the execution of the 1987 Will can be considered “new.”
Tennessee law provides for a new trial based on newly discovered evide nce only under very limited circumstances. That rule, as s tated in Crain v. Brown , 823 S.W.2d 187 (Tenn. Ct. App. 1991), is:
Gen eral ly, in order for a party to obtain a new trial based on newly discovered ev i dence, it must be shown that the evidence was discovered

after the tri al, that it could not have been discovered earlier with due diligen ce, thatit is material and n ot merely cumulative or impeaching, an d that the evi dence will p robably change the result if a new tr

ial is granted. 20 Tennessee Jurisprudence , New Trials §§ 6, 7, 8, 9 and 10. Id. at 192. Appellants’ evidence clearly does not satisfy the due diligence

requirement. The evidence at issue here, name

ly the 1987 Will

itself, was admittedinto evidence an d is a part of the r

ecord in this case. Appellant

s had ample time to di

scover the alleg

ed problem with

the Will’s execution and point it out to the trial court long before the close of the trial in this matter. Accordingly, the

judgment of the trial court is affirmed, and the case is remanded for such further proceedings as may be necessary. Costs of the a ppeal are assessed to Appellants, Walter Dewi tt M orr is a nd J o An n Mo rri s Ho lto n an d th eir sur ety.

__________________________________________ W. FRANK CRAWF

ORD, PRESIDING JUD GE, W.S

.