Robert Reece v. Helen S. Valois

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 27, 2012 Session

ROBERT REECE ET AL. v. HELEN S. VALOIS ET AL.

Appeal from the Chancery Court for Johnson County

No. 6293 G. Richard Johnson, Chancellor

No. E2011-02615-COA-R3-CV-FILED-SEPTEMBER 27, 2012

The issue in this case is whether a warranty deed made by a 98-year-old uncle to his 85-year-

old niece should be set aside for lack of competence or undue influence. Following a bench

trial, the court found that the uncle was competent and that the niece did not exert undue

influence on him. The uncle’s children appeal. We hold that the evidence does not

preponderate against the trial court’s findings. Accordingly, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.

F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

John Banks, Elizabethton, Tennessee, for the appellants, Robert Reece, individually and as

administrator of the estate of Benjamin Harvey Reece; Judy Reece Arwood; Jerry Reece; and

Richard Reece.

George T. Wright, Mountain City, Tennessee, for the appellee, Helen S. Valois.

OPINION

I.

This is an action to set aside a warranty deed executed by Benjamin Harvey Reece

(“the Uncle”) to his niece, Helen S. Valois (“the Niece”), on June 10, 2008. The deed

transferred 39 acres of mountain land (“the Mountain Land”) that the Uncle acquired in 1993

from his sister, Victoria Reece. Victoria, who predeceased her brother, is the Niece’s aunt.

The action was initially filed by all of the Uncle’s children, “on behalf of [the Uncle],

their father.” In April 2009, the Uncle’s son, Robert Reece, was appointed in North Carolina

– the state of the Uncle’s residence – as “general guardian” over the Uncle’s person and

property. In light of the guardianship, the complaint was amended to reflect that each child

was a plaintiff individually and in a representative capacity on behalf of the Uncle. The

Uncle died on February 24, 2010, just short of his 100th birthday. Robert was appointed in

North Carolina as the administrator of the Uncle’s estate. This resulted in a second amended

complaint. Where possible, we will refer to the plaintiffs collectively as “the Children.”

Because of all the common last names, we will occasionally refer to a party or person by his

or her first name. Those references, however, should not be interpreted as a suggestion of

familiarity or disrespect.

As of June 10, 2008, the Uncle was 98 years of age. Despite his advanced age, he

lived alone on his 108 acre farm in North Carolina, a very short distance from the Mountain

Land. The Uncle received daily assistance from his family with respect to his medications,

meals, and housekeeping. His medical problems as of that date included a history of prostate

surgery, heart attack, hip replacement, hearing impairment and diminished vision. By all

accounts, he was “proud,” “independent,” and “private,” including with regard to his

financial affairs. Nevertheless, he allowed his son Robert to be a signatory on his bank

account because he would sometimes forget to pay his bills.

The Niece was 85 years of age on June 10, 2008. The Uncle was the youngest brother

of the Niece’s mother. The Niece lives in Hilton Head, South Carolina, but spent her

summers in Newland, North Carolina. Newland is close to the Mountain Land. While in

Newland, the Niece would visit with the Uncle periodically. According to the Niece, the

Uncle lived in her family’s home while he finished high school.

The trial court made some specific findings as to the relationship between the Uncle

and the Niece, which bear repeating here:

The [Niece] and [the Uncle] had a good, healthy, wholesome,

enduring, loving relationship through the years. When she did

not come to visit him in person, which may be . . . two to four

times per year, she would send him . . . small gifts from time to

time. He liked her.

On June 9, 2008, the Niece, in the Uncle’s presence, stated to Robert Reece that she

was taking the Uncle to a lawyer’s office and he was going to make her a deed to the

Mountain Land. Robert protested that no such thing was going to happen. Robert later

testified that the Niece assured him that she was buying the land. Robert was satisfied with

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that response even though, according to Robert, they did not discuss how much she was

paying for the property.

The Niece did in fact pick the Uncle up at his home on June 10, 2008. He rode with

her to the office of attorney Bill Cockett in Mountain City. According to the Niece, she had

never before driven to Mountain City; she followed her Uncle’s directions until they came

to a sign in front of a lawyer’s office. The Niece went inside, spoke to the receptionist about

what they needed, and then summoned the Uncle to come inside. Mr. Cockett interviewed

the Uncle, and prepared the deed. She walked across the street and recorded the deed. She

took the Uncle back home where she encountered Robert and his wife, Barbara. According

to the Niece, Barbara became very angry when told that the Uncle did in fact deed the

Mountain Land to the Niece. Robert, according to the Niece, was much more cordial.

However, he later made an issue of the matter by demanding payment. The Niece responded

that the transfer of the land was a gift. This action was filed shortly thereafter.

At trial, all of the Children and the Niece testified. The Uncle’s treating physician

testified by deposition as did attorney Cockett and one of his associates who helped him

interview the Uncle. Regrettably, the record before us does not include the deposition of the

physician or his notes that were attached to his deposition as an exhibit. Also missing are the

depositions of the attorneys. Our best indication of the content and flavor of that testimony

is in the court’s lengthy opinion announced from the bench. Accordingly, we have repeated

that excerpt from the opinion:

. . . . They came to the office of Bill Cockett, a lawyer here in

Mountain City, and . . . they went into Mr. Cockett’s office; and

he had never met either one of them before. He had never done

any business for either one of them before and the receptionist

came back and said, “There’s a couple out here who want you

to draft a deed.”

Well, he sat down and talked with them and immediately

recognized that [the Uncle] was an elderly gentleman. And

since Mr. Cockett had been practicing law for 30 years, plus,

and had devoted those 30 years primarily to the real estate

practice of law, when he saw [the Uncle], red flags went

off. . . . [H]e explained that experienced real estate lawyers

know that when an elderly person comes into their office and

wants to deed some property away to someone other than their

children, he says, “It’s a red flag. . . .” So any time that an

elderly person comes into my office, it’s standard procedure,

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every time, that we absolutely assure ourselves that they know

what they’re doing, that they’re competent to sign the deed.”

So, he took extra time to chat with [the Uncle]; and he doesn’t

remember what all they talked about, but he remembers, of

course, [the Uncle] knew the basics, what day and month and

name, etc., etc.; and he says that it’s his recollection that [the

Uncle] brought the deed with him, the original deed from

Victoria to [the Uncle] on the [Mountain Land]. And Mr.

Cockett goes on to explain that he did not go to the courthouse

and look up the description . . . and that the only way he could

have gotten it was by someone giving it to him. And it’s his

recollection . . . that the way he got the description . . . was that

[the Uncle] had the original deed from Victoria . . . “in its blue

cover.”

* * *

So, [the Uncle] evidently had the wherewithal to, first, know

that he was going to deed that property because he brought a

copy of the deed with him. He had announced it along with the

[Niece] to at least Robert and his wife and maybe some other

people the night before. . . .

He is absolutely sure that [the Uncle] was competent and had the

capacity to understand what he was doing and that he wanted to

do it. . . .

So, then we get down to, “Well, . . . [w]hat is the value of this

property?” Well, the long and short of it is that neither [the

Uncle] nor [the Niece] knew the value of the property. Mr.

Cockett’s recollection is . . . that he . . . called somebody. He

thinks he called the County Trustee’s office to find out what the

tax value was; and it’s his recollection it was around $35,000.

But, of course, now we know when, we look to the deed from

Victoria to [the Uncle], that that deed[] also recites “$35,000.”

So, when they decided on the $35,000, Mr. Cockett became

concerned about the payment terms, and there was some

discussion. [The Uncle] said he didn’t care. He didn’t want

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anything. There was this $5,000 that had been paid to Mr.

Bunton to make a right-of-way into the property and a pond. So,

there was at least $5,000 passed between the [Niece] and [the

Uncle]. The $5,000 was cashed and deposited into his account

and no problem.

But, Mr. Cockett . . .said, “Well, what do we do about the other

$30,000? . . .” He then began a discussion with the parties about

gift taxes. . . . And, they said, “Yeah. Okay, we’ll make it a

gift, whatever, that’s fine, yes, it’s a gift.” And he said, “Well,

you know, if it’s a gift then you’ve got to think about gift taxes”

and he talked about that with them. . . . And [the Uncle] wasn’t

overly concerned.

[The Uncle] said he didn’t want the money, that everything was

okay, he would take the $5,000. And then the question came up,

“Well, did the [Niece] give him the other $30,000?” She swore

unequivocally she did, she wrote him a check for it. The check

was never cashed and never found, and she didn't bring her

check register, and wasn't asked to.

Both Mr. Cockett and another lawyer he called in there . . . saw

the [Niece] pass a check to [the Uncle]. They did not see the

check itself, the details; they saw her pass a check. Was the

check for $5,000 or $30,000 or $35,000? Was it one check or

was there two? One check is here, it’s for the $5,000 and it’s

very evident from Mr. Cockett’s deposition that [the Uncle] was

satisfied with the $5,000; he just wanted her to have the

property.

. . . . And Mr. Cockett remembered that [the Uncle] had

mentioned that he and Victoria, i.e., his sister, wanted the

[Niece] to have this property. And . . . Mr. Cockett makes it

clear to this Court.

. . . Mr. Cockett . . . made notes about what happened that day,

and the notes are in the record and part of an exhibit. Yeah,

looking at my notes now, in the deposition Mr. Cockett told us

that, “[the Uncle] said, ‘Victoria wanted her,’ ” the [Niece], “ ‘

to have the property.’ ” And confirms several times that [the

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Uncle] had said that his children knew about it, i.e., the

conversation the night before, and they were okay with it.

* * *

So, Mr. Cockett, to again assure himself as a professional that

[the Uncle] was competent and could sign the deed, he called

another attorney in the office, a lady by the name of Sarah

Lawson. And she had been in practice . . . since ‘96 or so . . .;

and her line of work also was real estate and she did some other

things but she reiterated that the policy in their office was when

anybody elderly comes in and wants to convey property to

someone other than their children, there’s this process they go

through. And she has to come in and chat with the people and

look them over. And so she did.

. . . . And in her presence, Mr. Cockett continued some of the

colloquy between he and the [Niece] and [the Uncle]. And

while Ms. Lawson was in the room, Mr. Cockett talked

about . . . lots of stuff, but one thing she could remember was

the gift tax. And while she was in the room, she saw the [Niece]

pass a check to [the Uncle]. And when asked what the check

was for, . . . “She,” the [Niece], “was going to pay him for the

property.” And she was only in there about ten minutes but she

said that chatting, looking and talking, that he appeared fully

competent, knew what he was doing, and was very capable of

signing the deed.

* * *

Well, here’s this elderly man that it’s alleged that he doesn’t

know what he’s doing, he’s getting up every morning, he’s

putting his own clothes on. . . . He, very definitely, from the . . .

testimony of the children, their father was not totally

incompetent and incapacitated all the time. Very obvious[ly], he

had lucid moments with them from time to time.

So, the [Children] did . . . what they should do, they took the

deposition of Dr. Whitlock. He is an internal medicine doctor

in Boone, North Carolina; again, just a few miles over the line

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here from Mountain City. And he is Board-certified in the sub-

specialty of geriatrics, the medicine for old people. He had

known [the Uncle] for several years, had treated him at least

since the 1990’s, I think, at a time when [the Uncle] was in his

nineties. And if you look at his notes that are attached to his

deposition as an exhibit . . . one comes to the general conclusion

that Dr. Whitlock did not commit himself to the incapacity to the

point that [the Uncle] could not make decisions until after this

lawsuit was brought and at the time when the children asked for

an opinion letter.

I cannot find in those notes . . . anything in May, June, July. I

can’t find anything in there . . . at the time that [the Uncle]

executed this deed.

Of course, it may be because lawyers and judges like the

witnesses to answer directly, but in his notes and in his

summaries from his office, he hops, skips and jumps a bit about

“Was [the Uncle] lucid at the time he signed this deed?” The

answer . . . was, “Well, he had difficulty making decisions.”

And then he said, “Well, he was impaired. He did have hip

surgery. He was a little hard of hearing. He couldn’t see too

good.”

And about the closest we get to . . . tying Dr. Whitlock down is

in his deposition. But you’ve got to remember that this

physician does not state anywhere . . . that he saw [the Uncle]

. . . close to June of [2008]. . . .

* * *

In 2009, Dr. Whitlock writes the opinion letter. He says that the

physical examination of [the Uncle], quote, “suggests a

subcortical dementia.” Says “he’s factually impaired and he

may know the day and week and month, but he has little

insight,” he says “into events or life decisions.” And then, this

is another example of how Dr. Whitlock answers the question,

“Did [the Uncle] have the capacity to sign that deed in June of

[2008]?” And he says, “Not only is it my professional opinion

now that any major decisions made by [the Uncle] over the last

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year would have been made with limited faculties, but I believe

that he needs concerted family to help make decisions for him

in the future.”

“Limited faculties?” Limited faculties in and of itself does not

mean that someone is incompetent to sign a deed. It doesn’t

mean someone doesn’t have the capacity to sign the deed. In

spite of all that, Dr. Whitlock opined that [the Uncle] had

limited faculties, had impaired judgment, was not good at

making decisions; and that’s what I mean about the good doctor

hop, skipping and dancing around this most crucial question.

When pressed, he answered more specifically and then in

Lawyer Cockett’s deposition there’s a most interesting turn of

events. One of the attorneys asked Mr. Cockett if he knows this

doctor. He said I’ve known him for 30 years. [“]How have you

known this doctor over in Boone for 30 years? Because my wife

is a doctor over there.” . . . “And I’ve dealt with Dr. Whitlock on

other matters about similar to this.”

And Mr. Cockett’s opinion was that Dr. Whitlock was way to

quick to the draw about declaring people incompetent when

their children asked him to, and he led me to believe in his

deposition that that was Dr. Whitlock’s reputation. You know,

“If it’ll help the children and help my patient, I’ll say they’re

incompetent.” And, I’m sure there are medical reasons for Dr.

Whitlock’s opinion, but, to me, not only his deposition, his

opinion letter, these notes, they’re not very convincing, they’re

not very persuasive.

* * *

There is very definitely animosity between [the Uncle]’s

children. I pick up particularly on his daughter-in-law, Barbara,

some from Robert, that they are very upset that their father

would make a gift of this property or sell it – well, make a gift;

they said it was okay to sell . . . this property to their cousin,

their dad’s niece. And Robert Reece confirms for us that when

[the Uncle] told Robert the night before, about “I’m going to

execute this deed tomorrow,” Robert’s testimony was that he

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asked his cousin, the [Niece], what the value of the property

was. She said, “I don’t know.” And this is when, according to

Robert’s testimony, that the [Niece] told Robert, “This property

was promised to me from Aunt Victoria.”

And if you follow the line that’s being drawn, it’s pretty easy to

see what the brother to Aunt Victoria was doing; he was

fulfilling a promise. Maybe he and Aunt Victoria had this in

mind all along, but Robert testifies that the [Niece] told him that

this property was promised to her from Aunt Victoria. And of

course, Aunt Victoria deeded it to [the Uncle], as I’ve

mentioned in ‘93.

And, when this matter came to a semi-head outside of court,

before court, Robert was not very pleased. He said, “Well,

okay, go ahead, pay full value for it.” . . .

* * *

I was shocked a little bit on cross-exam when Mr. Robert Reece

said that he didn’t tell the [Niece], quote, “nothing” about his

father’s mental condition. . . . And the night before [when] the

gift or conveyance was announced, Robert did not take that

opportunity to take the [Niece] aside and tell her all that he is

now telling the Court about his father’s alleged incompetence.

* * *

After [the Uncle] was admitted to the nursing home care facility,

and I recollect that to be about April of . . . ‘09. He died in

February of 2010. You know, in addition to those findings that

I’ve made that in my mind show that [the Uncle] knew what he

was doing when he signed this deed, let’s don’t forget, too,

about [the Uncle] being independent, proud, just a fine hard old

guy. Everybody describes him as a gentleman.

Let’s don’t forget that he had other property. In other words, he

was not impoverishing himself by conveying . . . the [Mountain

Land] to the [Niece]. He had a million-dollar farm across the

line here and they say the farm is worth – the 108 acres is worth

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a million because it’s right across the street from . . . Beech

Mountain Resort . . . So, my point is, he was not impoverishing

himself by conveying this property.

There was hostility. Robert Reece admits it . . . on cross-

examination. There was a discussion about [the Uncle] being

concerned that Robert . . . and the kids were going to put him in

the nursing home. And [the Uncle]. . . was hostile toward him

because [the Uncle] thought that Robert and the children were

trying to put him in a nursing home and he didn’t want to go.

Again, Robert Reece makes it abundantly, crystal clear; he said

this on direct several times, in his discovery deposition, on

cross-examination in court. The children agreed with this so

long as she pays what it’s worth. In other words, “If it’s a

purchase for fair consideration, that’s fine with us; but if it was

a gift, no way.” . . .

* * *

There’s a right-of-way into the property. [The Uncle] knew that.

He knew that on the [Mountain Land] that there was a right-of-

way issue “and if we’re getting the deed done, we ought to tell

the lawyer about that.” And [the Uncle] had enough presence of

mind to do that because they talked about it. And Mr. Cockett

was briefly concerned with it until he satisfied himself that the

right-of-way was okay. . . .

Well, did [the Uncle] have the capacity and the competency to

sign, execute, that deed in June of ‘08? Well, we start off first

with a premise, and the premise . . . is that in Tennessee there is

a presumption that adult persons are sane rather than insane and

capable rather than incapable to direct their personal affairs until

satisfactory evidence to the contrary is presented; mental or

physical impairment should never be presumed.

Well, . . . the [Children] have the burden of proof by a

preponderance of the evidence . . . because there’s a

presumption in the law that [the Uncle] knew what he was doing

. . . . [J]ust because you’re an old guy or an old woman doesn’t

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mean that you don’t have the sense to do what you’re doing.

Age, in and of itself, is not conclusive at all of a person’s

capacity, mental capacity, to sign a deed.

This Court concludes that [the Uncle] had an intelligent

comprehension of the act of transferring this property, that there

has not been an iota of evidence in this record that there’s been

any improper influence on him, coercion, duress to make him do

this; zero, zilch.

The Court finds that the execution of the deed from [the Uncle]

to the [Niece] was a conscious, voluntary, intelligent act that he

comprehended. He understood what he was doing. Now, you

understand that in Tennessee . . . it’s not necessary that [the

Uncle] dispose of his property with judgment or discretion; it’s

just necessary that he understands what he is doing. . . .

Not only was he not under any undue influence, he was not

under any improper influence of any kind that was exerted by

the [Niece] to obtain this conveyance, and there’s no suspicious

circumstances. . . .

[The Uncle] intended to make this gift and he had love and

affection for the [Niece], enduring love and affection for many

years; not just this one time, for many years. And with Aunt

Victoria, [the Uncle]’s sister, evidently, there was a relationship

there too.

[The Niece] never had the type of close, personal, confidential

relationship that would require me to set aside the deed. . . . At

the time that [the Uncle] signed this deed he was lucid. The

theories of the [Children] were not proven by a preponderance

of the evidence. Accordingly, the Court denies the request to set

aside the deed and taxes the cost to the [Children]. . . .

The court incorporated its memorandum opinion into the judgment.

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II.

The substance of the Children’s five issues is captured completely in the last two,

which are:

Whether the evidence preponderates against the Chancellor’s

findings of fact.

Whether the Chancellor correctly applied the law to the facts.

III.

Our standard of review of a trial court’s findings of fact in a bench trial is set by Tenn.

R. App. 13(d) . The court’s findings are presumed correct unless the evidence preponderates

against them. Id. However, we “will not re-evaluate a trial judge’s assessment of witness

credibility absent clear and convincing evidence to the contrary.” Wells v. Tennessee Bd.

of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). This deference is based upon the realization

that

trial courts are able to observe witnesses as they testify and to

assess their demeanor, which best situates trial judges to

evaluate witness credibility. Thus, trial courts are in the most

favorable position to resolve factual disputes hinging on

credibility determinations.

Id. (citations omitted). Moreover, in the absence of transcripts of the testimony that relate

to the findings being challenged, “we conclusively presume that the findings of fact made

by the trial court are supported by the evidence and are correct.” In re M.L.D., 182 S.W.3d

890, 894 (Tenn. Ct. App. 2005)(citing J.C. Bradford & Co. v. Martin Constr. Co., 576

S.W.2d 586, 587 (Tenn.1979)). The trial court’s conclusions of law are reviewed de novo

without any presumption of correctness. C-Wood Lumber Co. v. Wayne County Banks, 233

S.W.3d 263, 272 (Tenn. Ct. App. 2007).

IV.

The Children characterize the Uncle as weak, frail, and easily influenced. In their

view, he was completely at the mercy of the Niece. They believe she more or less kidnaped

him from his home, and took him to a lawyer’s office that she knew would help her in her

evil plan to take the Uncle’s property. While there, the thought process goes, she told the

lawyer what was to be done and he, in total disregard of the Uncle’s limitations, drew up the

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deed and watched while the Uncle signed it. The problem with this argument is that it

completely disregards the factual findings of the trial court. The trial court found that the

Uncle was proud and independent. The trial court also found that the Uncle and the Niece

announced their intentions the night before the transfer was made. The court further found

that the Uncle had enough presence of mind to know that the deed from Victoria would be

helpful; therefore, he took it, in its “blue cover,” to the lawyer’s office. The court opined that

the Uncle wanted to honor the wishes of his sister, Victoria – from whom he had acquired

the land for less than fair market value – that the Niece have the land. The court found that

the Uncle was knowledgeable and conversant concerning the right-of-way and the $5,000

in expenses he had incurred. With respect to the credibility determinations implicit in the

trial court’s findings, there is no “clear and convincing evidence to the contrary.” Wells, 9

S.W.3d at 783. In evaluating the evidence in this case, we are hampered by the absence of

the deposition testimony of two key witnesses, Mr. Cockett and Dr. Whitlock. In the absence

of these depositions, we must presume that the trial court’s findings with respect to the

testimony of these two witnesses are correct. In re M.L.D., 182 S.W.3d at 894.

While we are on the critical subject of the Uncle’ competence, it will be helpful to put

the Children’s argument in perspective. The thrust of their argument is that their father, the

Uncle, could not have been competent to execute the deed because he was later diagnosed

with dementia that must have existed at the time he signed the deed. Numerous appellate

opinions can be found which have affirmed a trial court’s finding that a person was

competent to execute a document despite pre-existing dementia. See, e.g., Fell v. Rambo,

36 S.W.3d 837, 846-47 (Tenn. Ct. App. 2000) (a reviewing court will not second guess trial

court for rejecting testimony of expert who saw the person after the fact and testified that her

dementia prevented the person from being lucid); Dickson v. Long, No. M2008-00279-COA-

R3-CV, 2009 WL 961784 at *3 (Tenn. Ct. App. M.S., filed April 8, 2009)(evidence of

dementia does not prove incompetence with regard to a particular transaction). The trial

court was correct, also, that a person does not have to exercise “judgment and discretion” to

be competent; all the law requires is that a person understand the “nature, extent, character,

and effect of the transaction.” Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d

291, 297 (Tenn. Ct. App. 2001). Whether or not a person has that capacity is a question

entrusted to the trier of fact. Dickson, 2009 WL 961784 at * 3. As we have stated, the trial

court in this case determined that the Uncle was competent to sign the deed and there is not

clear or convincing evidence to disturb that finding.

The Children also argue that the trial court failed to analyze this case under the general

outline for confidential relationships and undue influence articulated in Kelley v. Johns, 96

S.W.3d 189 (Tenn. Ct. App. 2002). They repeat the following language from Kelley in their

brief:

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The suspicious circumstances most frequently relied upon to

establish undue influence are: (1) the existence of a confidential

relationship between the testator and the beneficiary; (2) the

testator’s physical or mental deterioration; and (3) the

beneficiary’s active involvement in procuring the will. In re

Elam’s Estate, 738 S.W.2d 169, 173 (Tenn. 1987); In re Estate

of Hamilton v. Morris, 67 S.W.3d 786, 792 (Tenn. Ct. App.

2001); Fell v. Rambo, 36 S.W.3d 837, 847-48 (Tenn. Ct. App.

2000). In addition to proof of a transaction benefitting the

dominant person in a confidential relationship, other recognized

suspicious circumstances include: (1) secrecy concerning the

will’s existence; (2) the testator’s advanced 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 emotionally distraught

state; (7) discrepancies between the will and the testator’s

expressed intentions; and (8) fraud or duress directed toward the

testator. Halle v. Summerfield, 199 Tenn. at 454-57, 287

S.W.2d at 61-62; In re Estate of Maddox, 60 S.W.3d at 89;

Mitchell v. Smith, 779 S.W.2d 384, 388 (Tenn. Ct. App. 1989);

1 Pritchard on Wills § 148, at 233.

* * *

Confidential relationships can assume a variety of forms, and

thus the courts have been hesitant to define precisely what a

confidential relationship is. Robinson v. Robinson, 517 S.W.2d

202, 206 (Tenn. Ct. App. 1974). In general terms, it is any

relationship that gives one person the ability to exercise

dominion and control over another. Givens v. Mullikin ex rel.

Estate of McElwaney, 75 S.W.3d 383, 410 (Tenn. 2002);

Childress v. Currie, 74 S.W.3d at 328; Mitchell v. Smith, 779

S.W.2d at 389. It is not merely a relationship of mutual trust and

confidence, but rather it is 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.

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Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App.

1973).

Id. at 196-197. The Children’s reliance on Kelley is misplaced for several reasons. The full

text of the opinion shows that the first paragraph in the quotation was written in the context

of an issue of the admissibility of evidence. Thus, the language was intended in Kelley to

show that the scope of proof allowed is generally broad. Id. at 195. There is no issue in the

present case about the admissibility of evidence.

Second, and more importantly, the Children insist again on ignoring the findings of

the trial court in favor of indulging their own suspicions which they try to relate to the

language of Kelley. We can best explain by illustration. The Children presumably believe

that the Niece held some element of fascination for their divorced 98-year-old father. Any

such suspicions are in conflict with the trial court’s finding that the relationship was

wholesome, loving and longstanding. The Children say that the Uncle was “completely at

[the] mercy” of the Niece because he was out with her in a car. This argument is in conflict

with the trial court’s finding that this 98-year-old farmer was still proud and independent and

only he knew the way to Mountain City from his home. They say that she picked a lawyer

who felt no obligation to look out for the Uncle. The trial court specifically found that before

Mr. Cockett would make the deed, he interviewed the Uncle at length. The Children believe

that the Uncle’s physical and mental impairments prevented him from understanding what

was going on. We have dealt with the errors in this argument and need not repeat our

discussion here. The Children argue that the Niece did all of this in a veil of secrecy. The

trial court found that she and the Uncle in fact informed the family of their intentions the

night before the transaction. The Children argue that Mr. Cockett should have talked to the

Uncle in private. This argument seems, again, to refuse to acknowledge Mr. Cockett’s

testimony that he takes special precautions when preparing a document that will be executed

by an elderly person. The Children argue that it was unnatural for the Uncle to deed this

property to a distant relative to whom he was not particularly close. This argument ignores

the finding that the Uncle acquired this property on very favorable terms from his sister,

Victoria, and that in deeding the Mountain Land to the Niece he was fulfilling a promise to

Victoria. The argument also ignores the finding that the Uncle had a long-standing,

wholesome affection for the Niece and that he was having some conflict with his family and

with Robert in particular. The Children argue that the Niece was clearly engaged in fraud

because she gave conflicting stories when Robert challenged her. The trial court considered

the argument and found no such conflict. The Children argue that suspicious circumstances

exist because the Niece paid less than the full value of the Mountain Land. It is true that she

paid less than the land is worth. The court found that the Uncle resolved to make the Niece

a gift of the Mountain Land, provided she would pay him back his out-of -pocket expense

of building the road and the pond. It is clear from Kelley that the convergence of several

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factors might make a case suspicious whereas the existence of only one generally proves

nothing. Id. at 196. In short, we hold that the factual findings of the trial court make Kelley

inapposite in the present case.

Simply stated, the evidence does not preponderate against the factual findings of the

trial court underpinning the trial court’s ultimate conclusion. Furthermore, the trial court, in

reaching its ultimate conclusion, correctly applied the relevant law to the facts.

V.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the

appellants, Robert, Reece, individually and as administrator of the estate of Benjamin Harvey

Reece; Judy Reece Arwood; Jerry Reece; and Richard Reece. This case is remanded,

pursuant to applicable law, for collection of costs assessed by the trial court.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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