Opinion

Kathy Austin v. Jacob Wilds, Jr.

Court: Court of Appeals of Tennessee
Filed: Apr 22, 2014
Status: Published
On the bench: Judge D. Michael Swiney
Cited by: 0 cases
Authority: More cited than 31.6%

“Under the abuse of discretion standard, a trial court’s ruling -13- ‘will be upheld so long as reasonable minds can disagree as to propriety of the decision made.’”

How later courts described this case

“Under the abuse of discretion standard, a trial court’s ruling -13- ‘will be upheld so long as reasonable minds can disagree as to propriety of the decision made.’”
“A trial court’s ruling on a motion to revise pursuant to Rule 54.02 will be overturned only when the trial court has abused its discretion. See Donnelly v. Walter, 959 S.W.2d 166, 168 (Tenn. Ct. App. 1997).”

Written by the judges who cited it.

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 5, 2014 Session

KATHY AUSTIN, ET AL. v. JACOB WILDS, JR., ET AL.

Appeal from the Chancery Court for Greene County

No. 20100174 Jon Kerry Blackwood, Senior Judge

No. E2013-01310-COA-R3-CV - Filed April 22, 2014

Kathy Austin, Vickie Shipley, and Sherry Foshie (“Plaintiffs”) sued their brothers, Jacob

Wilds, Jr. and James Wilds (“Defendants”), seeking to have certain deeds from their mother

set aside due to alleged undue influence and/or duress. After a bench trial, the Chancery

Court for Greene County (“Trial Court”) entered its order rendering judgment in favor of

Defendants after finding and holding, inter alia, that Plaintiffs had failed to prove the

existence of a confidential relationship necessary to show that the subject deeds were

procured through undue influence. Plaintiffs appeal. We find and hold that the evidence

does not preponderate against the Trial Court’s findings, and we affirm.

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

Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,

J R., C.J., and J OHN W. M CC LARTY, J., joined.

Thomas C. Jessee, Johnson City, Tennessee, for the appellants, Kathy Austin, Vickie Shipley,

and Sherry Foshie.

Ben W. Hooper, III, Newport, Tennessee, for the appellees, Jacob Wilds, Jr. and James

Wilds.

OPINION

Background

Plaintiffs and Defendants are adult siblings and the children of Dixie Wilds,

who died in late 2009. By virtue of the Last Will and Testament of Dixie Wilds, Plaintiffs

inherited an interest in a tract of land of approximately .85 acres1 in Greene County,

Tennessee2 , which included the house where Dixie Wilds had lived at the time of her death.

At some point in time after the death of Dixie Wilds, Plaintiffs discovered that there was an

issue regarding the water rights to the house they had inherited from Dixie Wilds. Plaintiffs

sued Defendants alleging that deeds executed by Dixie Wilds and Defendants on September

28, 2000 were procured through undue influence and/or duress and seeking to have these

deeds reformed as to the water rights. The case was tried without a jury in June of 2012.

Attorney D.R. Beeson, III testified at trial about his title examination of the

deeds involved in this case. Attorney Beeson testified that the real property at issue in this

case was originally one tract of land consisting of approximately 150 acres (“150 Acres”).

In 1949 Tom Hale and his wife deeded the 150 Acres to the Wilds brothers, Virgil, Jacob,

and Jerry, as tenants in common. Jacob Wilds was the husband of Dixie Wilds and the father

of Plaintiffs and Defendants. Dixie Wilds received no interest in the 150 Acres by virtue of

the 1949 deed. Jacob Wilds and Dixie Wilds lived in a house on the 150 Acres.

In 1962, Virgil Wilds deeded his one-third undivided interest in the 150 Acres

to Jacob Wilds and Dixie Wilds. In 1963 Jerry Wilds deeded his one-third undivided interest

in the 150 Acres to Jacob Wilds and Dixie Wilds. The 1962 and 1963 deeds created a

tenancy by the entireties in Jacob Wilds and Dixie Wilds in two-thirds interest in the 150

Acres. The one-third undivided interest held by Jacob Wilds by virtue of the 1949 deed from

Tom Hale and his wife continued to be held solely by Jacob Wilds.

The record reveals some discrepancy in the stated acreage of the tracts of real property involved in

this case. As is often the case, later surveys disagree with the amounts of acreage stated in deeds that appear

earlier in the relevant chain of title. There is no dispute in this case regarding the amount of acreage involved

in the real property at issue. As such, for ease of reference and to avoid confusion and maintain consistency

in the areas being discussed, we refer in this Opinion to the acreage using the approximations that appear in

earlier deeds within the chain of title introduced at trial.

As best as we can tell from the record on appeal, some of the real property owned by Jacob Wilds

and Dixie Wilds may have been located in Cocke County and some in Greene County. The exact location

of the real property is not material to the issues raised in this appeal.

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In January of 1964 Jacob Wilds and Dixie Wilds created a life estate for

Winnie Wilds, the mother of Jacob Wilds, in .4 of an acre of the 150 Acres. Then, in 1975

Jacob Wilds and Dixie Wilds conveyed the 150 Acres to Defendants with three exceptions,

the .4 acre life estate for Winnie Wilds, a one acre tract, and a .6 acre tract. The one acre

tract and the .6 acre tract were treated as one tract, and Jacob Wilds and Dixie Wilds had

their house on the 1.6 acres. The 1975 deed also retained a life estate for Jacob Wilds and

Dixie Wilds in the 150 Acres less the exceptions. Upon the death of Jacob Wilds, the 1.6

acre tract passed to Dixie Wilds as the surviving tenant by the entireties. As for the .4 acre

tract, Dixie Wilds owned a two-thirds undivided interest as the surviving tenant by the

entireties, and the remaining one-third interest was shared by Dixie Wilds and her five

children, who are the Plaintiffs and Defendants.

The specific deeds which Plaintiffs allege were the product of undue influence

and/or duress were executed on September 28, 2000, after the death of Jacob Wilds. On that

day defendant Jacob Wilds, Jr.3 and Dixie Wilds conveyed to defendant James Wilds

approximately 88 acres, which included their interests in the 1.6 acres and the .4 acres.

Defendant James Wilds and Dixie Wilds also conveyed to defendant Jacob Wilds, Jr. a

portion of the 150 Acres in order for Dixie Wilds to relinquish her life estate created in the

1975 deed to Defendants. Also on September 28, 2000, defendant James Wilds conveyed

to Dixie Wilds .85 acres, which was a portion of the 1.6 acres. The September 28, 2000 deed

from James Wilds to Dixie Wilds contained a right to use and maintain a spring, pump house,

and existing water lines located on other property of James Wilds and stated that the grant

of water rights was personal and not to run with the land. Prior to execution of the

September 28, 2000 deeds, Dixie Wilds owned a life estate in the 150 Acres less the above

mentioned exceptions, owned 1.6 acres, and owned an interest in the .4 acres. Basically, on

September 28, 2000 Dixie Wilds conveyed all her interests in the property to Defendants and

then defendant James Wilds conveyed .85 acres back to Dixie Wilds.

Defendant James Wilds testified at trial that he is retired from the Greeneville

City School System. James Wilds testified about the day that the September 28, 2000 deeds

were executed. He stated that he received a call at the school and was asked to come to

Attorney Greer’s office to sign some deeds with regard to the property he and his brother

owned in common, which they were dividing. His brother and his mother were at Attorney

Greer’s office when he arrived. James Wilds was asked if his mother was competent when

they were in Attorney Greer’s office, and he stated: “Very competent.” He testified that he

had a good relationship with his mother at that time. James Wilds testified that he cut water

off to the property inherited by his sisters some time after his mother’s funeral.

Because the Defendants share the same last name, when we refer to them individually in this

Opinion we refer to them using both first and last name to avoid confusion.

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Defendant Jacob Wilds, Jr. testified that he had no discussions with Attorney

Greer or with his mother about water to his mother’s home. He testified that he took his

mother to Attorney Greer’s office on September 28, 2000. Jacob Wilds, Jr. explained that

he was having coffee with his mother earlier that day and when he mentioned that he was

going to Attorney Greer’s office his mother asked if she could go with him. Jacob Wilds, Jr.

testified that at that time he had a good relationship with his mother.

Jacob Wilds, Jr., testified that he first became aware that Attorney Greer was

preparing a Last Will and Testament for his mother on September 28, 2000. He testified that

his mother was managing her own affairs and was capable of doing so at that time.

Plaintiff Kathy Austin testified that she is a homemaker and on the Greene

County Board of Education. Ms. Austin testified that during her mother’s lifetime there

never was a time during which there was no water to her mother’s property. Ms. Austin first

found out that there was an issue about the water when she spoke with Defendants a few days

after their mother had died.

Ms. Austin was asked what she did to assist her mother prior to 2000, and she

stated:

Well, I took her to town. We would go eat. You know, sometimes she would

go to doctors’ appointments by herself. Sometimes I would take her. We’d

stop by the bank, and she’d cash, you know, her checks or whatever. So just

general things like that. Then she could still drive.

Ms. Austin was asked if her claim of undue influence or duress in this case was

based on the fact that her brother drove their mother to Attorney Greer’s office on September

28, 2000 and the fact that her mother trusted her brother, and Ms. Austin agreed. She was

asked if her mother was capable of managing her own affairs at the time the September 28,

2000 deeds were made, and Ms. Austin stated: “She was competent to do daily affairs, yes.”

When asked if she had any knowledge of any threat or coercion imposed upon her mother

by her brother, Ms. Austin stated: “Not other than the paperwork.” Ms. Austin was asked

upon what she based her claim that her brother James had exercised undue influence over

their mother, and she stated: “She trusted him and paperwork.” Ms. Austin admitted that her

mother also trusted Ms. Austin and her sisters.

Ms. Austin testified that to her knowledge her mother never gave anyone a

power of attorney prior to September of 2000. Ms. Austin admitted that her mother also

executed her Last Will and Testament on September 28, 2000 and agreed that she was not

questioning the validity of her mother’s Last Will and Testament.

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Ms. Austin admitted that public water is available to the property she and her

sisters inherited from their mother for a $1,300 tap fee, but stated that they have not hooked

into the public water. She testified that when they stay at her late mother’s house they carry

jugs of water.

Plaintiff Sherry Foshie testified that she is a teacher retired from the Greene

County School System. Ms. Foshie was asked what the relationship between her mother and

her brothers and sisters was like between the time of her father’s death in July of 2000 and

September 28, 2000, and she stated: “Just a normal family. . . . We got together at Christmas

time. We got together on Mother’s Day, Father’s Day, ran in to each other when we were

visiting our parents.”

Plaintiff Vickie Shipley testified that she is employed as Judge Wilson’s

secretary. Ms. Shipley testified that she took her mother to Attorney Greer’s office in

September of 2000 so her mother could give Attorney Greer her handwritten will to be typed

up. Ms. Shipley stayed in the room with her mother while her mother spoke to Attorney

Greer that day.

Ms. Shipley was asked if she had any knowledge of threats or coercion

imposed on her mother with regard to the preparation and execution of the September 28,

2000 deeds, and she stated: “It’s on paper. There’s all kinds of coercion and undue influence

and duress.” Ms. Shipley admitted, not surprisingly, that she is not challenging the validity

of her mother’s Last Will and Testament, which also was executed on September 28, 2000.

Ms. Shipley agreed that she believes that her mother made and executed the Last Will and

Testament of her own free will.

Joseph W. Austin, Jr., M.D., plaintiff Kathy Austin’s husband, testified that he

and his wife have been married for 32 years. Dr. Austin was asked if Dixie Wilds was able

to manage her own affairs when her husband died in 2000, and he stated: “I think she was

competent. She was under a lot of stress, but competent, I think.”

The Honorable Ronnie Greer testified by deposition introduced as an exhibit

at trial.4 Attorney Greer produced copies of files he created when he represented various

members of the Wilds family. These files included deeds he prepared and the Last Will and

Testament of Dixie Wilds, which he also prepared.

At the time of the execution of the September 28, 2000 deeds, Judge Greer was a practicing attorney

in Greeneville. He subsequently was appointed to his position as a Federal District Judge. We refer in this

Opinion to Judge Greer as Attorney Greer simply to reflect the role he played as an attorney representing

parties involved in the transactions at issue in this case.

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Attorney Greer prepared a Warranty Deed dated September 28, 2000 in which

defendant Jacob Wilds, Jr. and Dixie Wilds granted real property to defendant James Wilds.

Attorney Greer also prepared a Warranty Deed dated September 28, 2000 from defendant

James Wilds and Dixie Wilds to defendant Jacob Wilds, Jr. Attorney Greer testified that it

was his understanding that he was preparing the deeds “to divide this property that’s

described in this 1975 Deed, which had been transferred jointly to James and Jacob Wilds.”

Attorney Greer also prepared a deed dated September 28, 2000 from defendant

James Wilds to Dixie Wilds. He testified that this deed from defendant James Wilds to Dixie

Wilds contains a reference to water rights, which states:

There is also conveyed herewith to grantee the right to use and maintain the

spring, pump house, and existing water lines located on the property of grantor

identified as Tract Number 3 as shown on subdivision plat prepared by

Professional Surveying Service, Inc. dated April 28, 1999, Parenthetical

Drawing Number 99115SUB.DWG. This grant is personal to grantee and

shall not run with the land.

Attorney Greer was asked who requested the language in the deed regarding water rights and

he stated:

My recollection on this is that the person who first discussed this with me was

James Wilds because I remember this. I don’t have a clear memory of all of

these events, but I do remember the subject of these water lines because I was

very concerned that the effect of these deeds would be to leave this tract of

property without any, without any water. And I expressed that to, I’m almost

certain it was James Wilds.

Attorney Greer further stated:

My concern was with there being water that would stay with that tract of land,

and I remember comparing that to a situation where you land locked a piece

of land and basically destroyed the value of it because there was no, no water

on it. And I think I may have mentioned this when you and I have talked

before. I have some recollection of somebody telling me that there was

another source of water, but I don’t know exactly who told me that.

Attorney Greer was asked if he spoke to Dixie Wilds about the situation, and he testified that

since Dixie Wilds did not sign this deed, he probably did not discuss the water rights with

her.

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Attorney Greer was asked if Dixie Wilds was lucid and “able to understand

what it was you were doing for her” when he met with her, and he testified that she was. He

pointed out that he prepared Dixie Wilds’s Last Will and Testament at the same time and

stated that he “would not have allowed her to sign that will if I had some question about her

competency.” Dixie Wilds did not appear to be under any undue influence or duress when

she was in Attorney Greer’s office. Attorney Greer stated: “She was not upset. She didn’t

exhibit any unusual behavior. She clearly relied on her sons to a large extent. But, no, there

was nothing unusual about that.”

Attorney Greer testified that in his files he also had a copy of the “same Deed

that I prepared for James Wilds except that it’s notarized by somebody named Jill Hartman,

not by me. The one I had in my file was notarized by me.” Attorney Greer testified that

other than the notarization and the recording information, which does not appear on the copy

in Attorney Greer’s file, the copy of the deed notarized by Jill Hartman “appears to be the

same,” as the copy of the deed in his file, which he prepared.

After trial the Trial Court entered its order on June 28, 2012 rendering

judgment in favor of Defendants after finding and holding, inter alia:

During their lifetime, Jacob and Dixie Wilds acquired a tract of land

which this Court will refer to as the farm. For purposes of these findings, the

farm was divided into tracts 1, 2, and 3. Tract 3 is separated from the other

two tracts by the Houston Valley Road. Originally Jacob and Dixie Wilds

lived on tract 3. Located on this tract was a spring and well that provided

water for the home. At some later date, Jacob and Dixie Wilds built a white

two story home on the other side of Houston Valley Road. This home became

the family home place. . . .

In 1975, Jacob and Dixie Wilds executed deeds wherein they conveyed

all the property of the farm to their sons as tenants in common. The 1975 deed

excepted approximately 1.6 acres and also reserved a life estate in the farm for

Jacob and Dixie Wilds. . . .

At all times after Dixie and Jacob moved to the home place, water was

supplied from the well and spring located across the Houston Valley Road. .

. . While the sons continued the farming operation, the Plaintiffs married and

established families and homes in Greene County.

Dixie Wilds had prepared a handwritten document purporting to dispose

of her property at death. In September 2000, Ms. Shipley carried her mother

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to the law office of Mr. Ronnie Greer, an attorney in Greene County. Mr.

Greer was to prepare a will for Dixie Wilds using the handwritten document

that she had previously prepared. While in the office, Ms. Shipley heard Mr.

Greer mention that he was also “preparing deeds for the boys.” The

Defendants had decided that they would divide the farm into various tracts

between themselves. Consequently, they made arrangements for a survey of

the property to accomplish this division. Instead of sharing the entire tract as

tenants in common, these tracts would establish fee ownership of the farm to

the brothers pursuant to the survey. As part of the division, James Wilds was

to receive that portion of the property that contained the well and spring.

On September 28, the defendants came to the office of Mr. Greer with

their mother. Ms. Wilds executed the will that Mr. Greer had prepared for her.

Article 11 of the will bequeathed to the Plaintiffs the two story white home

place. . . . Also, on September 28, various deeds were executed to accomplish

the division of the farm between the brothers. James Wilds and Dixie Wilds

executed a deed to transfer to Jacob Wilds, Jr. tracts 1 and 2. . . . Jacob Wilds,

Jr. and Dixie Wilds then executed a deed to James Wilds for the tract of land

known as tract 3 which included the property whereon the spring and well

were located. After that deed was executed, James Wilds executed a deed to

Dixie Wilds conveying approximately 0.85 acres in fee to the home place.

Included in this deed was the right of Dixie Wilds to use and maintain the

spring and well. However, the grant was personal and did not run with the

land. The end result of these deeds was to (1) divest Dixie Wilds of any life

estate that she had in the farm; (2) establish ownership in fee between the

brothers; (3) divest Dixie Wilds of any interest she might have of the garden

plot; and (4) restrict the use of the spring and well to the lifetime of Dixie

Wilds for the home place. The Plaintiffs were not aware of these conveyances.

***

Dixie Wilds died in 2009. . . . Shortly after their mother’s death, the

Plaintiffs were advised by the Defendants that the water to the home place

would no longer be available. In order to use the home, the Plaintiffs testified

that they had to bring bottled water to the home and also bring buckets of

water in order to shower and flush the toilets. Consequently, the Plaintiffs

filed this action to set aside these conveyances on the basis of undue influence.

There is no issue in this matter as to the competency of Ms. Wilds to

execute the deeds. Mr. Greer in his deposition testified that as far as he could

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recall, Ms. Wilds was lucid and able to understand what she was doing. He

would not have allowed her to sign the will if he had some question about her

competency. The issue of the water rights, however, were a concern for Mr.

Greer. He testified that the effect of the deeds would be to leave the home

place tract without any water. He testified that he expressed this concern to

James Wilds. However, Mr. Greer testified that Ms. Wilds did not exhibit any

appearance of being under any influence.

***

There are indeed some very suspicious circumstances surrounding the

execution of the deeds. It is manifest by virtue of her last will and testament

that Ms. Dixie Wilds desired to leave the home place to the Plaintiffs. The

abandonment of water rights would render the property virtually useless and

has no logical underpinnings. It is also uncontradicted that no consideration

for the deeds was exchanged contemporaneously with their executions. The

consideration, if any, was paid years before in the form of a loan or loans for

which there is no documentary evidence. . . . The sisters were unaware of

these deeds until after their mother’s death. However, it was clearly Jacob and

Dixie Wilds[’s] intention that the farm be allocated to the Defendants as

evidenced by the 1975 deed to them which retained only a life estate for

themselves.

There is no evidence to suggest that the financial affairs of Ms. Dixie

Wilds was [sic] exclusively controlled by the Defendants. It is further evident

that from the execution of these deeds until her death, the Plaintiffs continued

to visit with the mother and were in no way hindered from any interaction with

her. There is no evidence to suggest that Ms. Wilds was experiencing any

mental or physical decline. To the contrary, Mr. Greer opined that she was

competent. There is no indication that Ms. Wilds indicated to the Plaintiffs

that she had executed documents that she did not intend to execute nor

understand. More important, there is nothing in the record to indicate that Ms.

Wilds was the weaker personality that her sons were able to dominate.

It is clear that the action of the Defendants to suddenly inform the

sisters that water would not be available was malicious, vindictive, petty and

spiteful. This behavior is all too common in families after their parents are

deceased. For whatever reason, be it jealousy, greed or plain meanness, the

Defendants decided to cut off the water rights to the home place. However,

this Court concludes that the Plaintiffs have not established by a

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preponderance of the evidence that a confidential relationship existed between

the Defendants and Ms. Wilds and that as a result of that relationship these

deeds were procured through undue influence.

Plaintiffs filed a motion for additional findings of fact and to alter or amend.

After a hearing the Trial Court allowed the evidence to be supplemented with the affidavit

of Michael Grigsby, which states that Mr. Grigsby “prepared the survey dated April 21, 2000

on the property of Jacob and Dixie Wilds and the boundary lines between their property and

James Wilds’s property,” and that Mr. Grigsby recalled “being contacted by James Wilds to

obtain the survey . . .,” and further recalled “James Wilds being present and designating the

boundary line as indicated on the survey with five new set points.” The Trial Court declined

to make any additional findings and denied Plaintiffs’ motion to alter or amend. Plaintiffs

appeal to this Court.

Discussion

Although not stated exactly as such, Plaintiffs raise three issues on appeal: 1)

whether the Trial Court erred in refusing to consider evidence given in the testimony of

Attorney Greer and Defendants; 2) whether the Trial Court erred in denying Plaintiffs’

motion to make additional findings or to alter or amend; and 3) whether the Trial Court erred

in failing to determine the amount of Plaintiffs’ loss of use of the property inherited from

their mother.

Our review is de novo upon the record, accompanied by a presumption of

correctness of the findings of fact of the trial court, unless the preponderance of the evidence

is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).

A trial court’s conclusions of law are subject to a de novo review with no presumption of

correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.

2001).

We first consider whether the Trial Court erred in refusing to consider evidence

given in the testimony of Attorney Greer and Defendants. In their brief on appeal Plaintiffs

argue that the Trial Court erred when it refused to consider relevant evidence offered by

Attorney Greer and Defendants. Plaintiffs are mistaken. The evidence discussed by

Plaintiffs in their brief on appeal was considered by the Trial Court as evidenced by the Trial

Court’s detailed findings in its June 28, 2012 order. Plaintiffs, in their brief on appeal, point

to no evidence which was ignored. Instead, what Plaintiffs want this Court to do is to review

this same evidence and reach a different conclusion. This we decline to do. Plaintiffs argue

that the Trial Court should have reviewed the evidence and “should have found a confidential

relationship and undue influence.” The real issue here is whether the Trial Court erred in

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finding that Plaintiffs failed to prove a confidential relationship necessary to support a

finding of undue influence.

In Estate of Price this Court explained:

Courts apply the doctrine of undue influence “when one party, such as

a grantee, is in a position to exercise undue influence over the mind and the

will of another, such as a grantor, due to the existence of a confidential

relationship.” Brown v. Weik, 725 S.W.2d 938, 945 (Tenn. Ct. App. 1983).

In Iacometti v. Frassinelli, we discussed the nature of a confidential

relationship as follows:

It is that relationship where confidence is placed by one in the

other and the recipient of that confidence is the dominant

personality, with the ability, because of that confidence, to

influence and exercise dominion over the weaker or dominated

party, such as nurse and invalid, trusted business adviser and

friend etc. Bayliss v. Williams (1869) 6 Cold. 440, 46 Tenn.

440; Miller v. Proctor, [24 Tenn. App. 439, 145 S.W.2d 807],

supra. Proof of the existence of the normal family relationship

between a parent and adult child, standing alone, does not give

rise to an inference or presumption that either one exercises any

dominion and control over the other.

Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App. 1973). A trial

court’s conclusions regarding whether a confidential relationship existed or a

person exercised undue influence over another are questions of fact. Gibson

v. Gibson, No. W2004-00005-COA-R3-CV, 2004 WL 2464271, at *3 (Tenn.

Ct. App. W.S., Nov. 2, 2004).

In Tennessee, a presumption of undue influence arises when there is a

confidential relationship followed by a transaction in which the dominant party

receives a benefit from the other party. Matlock v. Simpson, 902 S.W.2d 384,

386 (Tenn. 1995). The burden of proof for these elements rests with the party

who alleges the confidential relationship. Smith v. Smith, 102 S.W.3d 648, 653

(Tenn. Ct. App. 2002). However, once that party establishes a presumption of

undue influence, the burden of proof shifts to the dominant party to rebut the

presumption by clear and convincing evidence of the fairness of the

transaction. Id.

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In re: Estate of Price, 273 S.W.3d 113, 125 (Tenn. Ct. App. 2008).

In the case now before us, the Trial Court specifically found: