Opinion

In Re: Estate of Terry Paul Davis

Court: Court of Appeals of Tennessee
Filed: Mar 14, 2016
Status: Published
On the bench: Judge D. Michael Swiney
Cited by: 0 cases
Authority: More cited than 43.2%

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The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 11, 2015 Session

IN RE: ESTATE OF TERRY PAUL DAVIS

Appeal from the General Sessions Court for Blount County Probate Division

No. P-00695 Michael A. Gallegos, Judge

No. E2015-00826-COA-R3-CV-MARCH 14, 2016

Christinia Davis (“Wife”), Terran Denise Davis (“Terran”)1, and Taylor Ann Davis

(“Taylor”) appeal the April 17, 2015 order of the General Sessions Court for Bount

County Probate Division (“Probate Court”) upholding the Last Will and Testament of

Terry Paul Davis (“the Will”). Wife, Terran, and Taylor raise an issue regarding whether

the Probate Court erred in finding that the presumption of undue influence arising out of

the proven confidential relationship between Terry Paul Davis (“Deceased”) and Olive K.

Davis (“Davis”) was rebutted by clear and convincing evidence. We find and hold that

although a confidential relationship was proven between Deceased and Davis, clear and

convincing evidence was proven to rebut the presumption of undue influence. We,

therefore, affirm.

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

Affirmed; Case Remanded

D. MICHAEL SWINEY, CHIEF JUDGE, delivered the opinion of the court, in which

CHARLES D. SUSANO, JR. and JOHN W. MCCLARTY, JJ., joined.

Kevin W. Shepherd and D. Chris Poulopoulos, Maryville, Tennessee, for the appellants,

Christina Davis, Terran Denise Davis, and Taylor Ann Davis.

Robert N. Goddard, Maryville, Tennessee, for the appellee, Dan Tussey, Personal

Representative of the Estate of Terry Paul Davis.

Duncan V. Crawford, Maryville, Tennessee, for the appellees, Olive K. Davis, Larry

Alan Davis, Lisa Davis, Gena Tussey, and Dan Tussey.

For ease of reading only, we refer in this Opinion to Deceased‟s daughters by their first names with no

disrespect intended.

OPINION

Background

Deceased died on October 19, 2013. Deceased was a resident of Blount County,

Tennessee at the time of his death, and was survived by his Wife and his two adult

daughters, Terran and Taylor. Deceased was diagnosed with cancer in June 2013. He

underwent surgery on June 28, 2013, and remained in the hospital until July 12, 2013.

Upon his release from the hospital, instead of returning to the marital home he had shared

with Wife and his daughters, Deceased moved in with his father and his mother, Davis.

Deceased filed a complaint for divorce from Wife on August 19, 2013, but died before a

divorce could be granted. Deceased lived with Davis until his death on October 19, 2013.

On August 6, 2013, Deceased executed the Will. In pertinent part, the Will

attempted to disinherit Wife, Terran, and Taylor, and instead provided for all of

Deceased‟s property to be equally divided among the following five other relatives: Olive

K. Davis, Larry Allan Davis, Lisa Davis, Gena Tussey, and Dan Tussey (“the

Beneficiaries”). In December of 2013, Wife, Terran, and Taylor filed a complaint to

contest the Will alleging, among other things, that the Will was procured by undue

influence. The case proceeded to trial without a jury in March and April of 2015.

Terran testified at trial that 2013 was a “[c]omplicated” year for her health-wise.

She explained: “Even before 2013 I had been sick on and off. I suffer from SLE,

systemic lupus erythematosus. It‟s a blood disorder and a full-body disorder.” Terran

was diagnosed with SLE when she was 12 years old, and the disease had caused both of

her kidneys to fail by the end of 2012. When asked about further medical complications,

Terran stated:

Yes. When the failure set in from my kidneys, I had fluid overload. I

gained about forty-five to fifty pounds, and the fluid backup, it surrounded

my heart and caused it to stop. I had a heart attack at twenty-one, and when

they brought me back my heart was functioning less than two percent.

Terran testified that before Deceased was diagnosed with cancer, she was engaged

in hemodialysis, a form of dialysis in which the patient‟s blood is cleaned through a

machine. This treatment left her in a poor condition. She stated that Deceased strongly

indicated that he wanted to be tested to see if he could be a potential donor to give Terran

one of his kidneys. Testing revealed that Deceased was a very close match, but that

Deceased was diagnosed with pancreatic cancer shortly after undergoing the testing.

Terran neither hated nor resented her father for being unable to donate his kidney to her.

Terran testified that she and Deceased had a close relationship and that they were

drinking buddies who enjoyed “[f]ootball every fall.” When asked to describe her

relationship with Deceased prior to his diagnosis, she stated:

He wouldn‟t leave me alone. He was always by my side. Every chance he

got, like he would play with my feet because that was the only part that

wasn‟t swollen anymore or painful. So instead of hugging me, because he

knew that I would bruise, or patting me on the head, because I was bald and

had no support up here (indicating), he would grab my foot and kind of

shake it. That was his way of saying, I‟m here.

Terran testified that she and Deceased both were hospitalized in July of 2013.

When asked whether she was in a condition to visit Deceased in the hospital during this

time, Terran stated: “No, I had an infection and it was a serious one. I was running

around with a mask constantly.” According to Terran, Deceased was not in a position to

visit her either. Terran told her mother to visit Deceased, and her mother did visit

Deceased before visiting Terran.

According to Terran, she was not in a position to visit Deceased upon her release

from the hospital. When asked to explain, she stated: “Someone had to take me. I

couldn‟t drive. I was on mandatory bed rest. I cheated. I wanted to go see [Deceased],

so I waited until [Wife] was off work. She drove by the house, still in work clothes,

picked me up, drove up to Fort Sanders.” Terran stated that she visited her father against

medical advice.

When asked whether there had been any indication before Deceased was released

from the hospital that he would be moving out of their home, Terran answered: “No. His

favorite phrase every time I saw him was, are you keeping my La-Z-Boy warm for me.”

Terran was questioned about when Deceased came to the marital home on August

5, 2013. Her grandfather, Deceased‟s father-in-law, brought Deceased to the house so

that Deceased could collect some papers that he needed. Deceased had trouble walking

at that time. She and Deceased reminisced about the past. Terran‟s sister, Taylor, did not

react well to Deceased being in the house. She explained:

My sister came down and saw him and kind of freaked out a little bit. He‟s

like, hey, tater bug, he calls her. She‟s like, yeah, hi. She‟s stepping back

from him. And he‟s like he wanted a hug and she‟s, no. What‟s wrong,

tater bug, don‟t you know me? Not anymore. Ran up the stairs and hear a

door slam and she‟s locked herself in her room.

When asked what she and Deceased did at that point, Terran answered: “Things got

awkward. He was holding the papers and he was just kind of shuffling around. He - - he

didn‟t act like himself. He just wasn‟t Dad anymore. I don‟t know how to describe it. I

really don‟t.” Deceased told her that he was coming home when he got stronger and that

he loved his girls and was going to take care of them.

Terran was readmitted to the hospital later in July in order to have a PD tube

installed so that she could undergo a different type of dialysis. At the time of trial, Terran

still was on dialysis. Terran stated that she was not aware that Deceased was hospitalized

a second time until after she returned home from the hospital. Neither Deceased nor

Davis visited Terran when she was hospitalized in July.

Terran did not have a very good relationship with her grandmother, Davis. When

asked whether she recalled that Davis encouraged her to attempt to obtain Social Security

benefits and offered to drive her to the Social Security Office, Terran stated: “That did

not occur.”

Terran testified that she visited Deceased five times while he was staying at

Davis‟s house. She stated that she tried to visit Deceased as much as possible, but Davis

interfered with her ability to visit. When asked how Davis interfered, Terran explained:

“She would come up with reasons, that he needed rest or it was time for his nurse to take

care of him or he needed to do this and she needed to do that for him and that it was time

for me to leave.” Terran later admitted, however, that she could have seen Deceased as

much as she wanted, and that her grandparents did not prevent her from visiting. Terran

admitted that Davis and Davis‟s husband even offered her one hundred dollars a week to

stay with them and care for Deceased. Terran did not want to do that. She stated that she

was not in a physical condition to help take care of Deceased, and she explained:

I wasn‟t even a hundred pounds and I had just gotten out of surgery. I was

doing hemodialysis four times a week and could barely move on my own. I

was lucky I could shuffle from place to place by myself. And they wanted

me to help take care of a man who was two hundred and fifty pounds and

sick and could wobble on top of me at any moment?

When asked to clarify her testimony regarding her ability to visit Deceased, Terran stated

that despite the fact that her grandparents offered to pay her to stay with them and that

she got to visit Deceased, she still felt that her grandparents kept her from visiting.

Davis testified at trial that she was not aware of any time that Terran stayed

overnight in the hospital during the times when Deceased was hospitalized prior to

October 2013. Davis stated that when Deceased was hospitalized in June, July, and

August 2013, Terran was not hospitalized for any overnight stays during that period of

time. When asked to clarify whether her testimony was just that she was not aware of it

or that it did not happen, Davis stated: “It did not happen.” Davis testified that “[w]e

would have known if she would have been in the hospital overnight.” When asked how

she would have known, Davis explained: “Because we would have - - somebody would

have told us.” Davis testified: “She was not in the hospital overnight. She was in the

hospital on the 7th or 8th of July to have her cord cleaned. It was one-day surgery.”

Davis testified that Terran was in the hospital in August for a port, but it was “one-day

surgery.” When asked, Davis answered that she did not know whether or not Terran had

a tube coming out of her neck. Davis testified that Deceased visited Terran when she was

in the hospital overnight in November 2012.

Davis testified that Deceased was diagnosed with cancer in June 2013. Deceased

had surgery on June 28, 2013, and Davis explained:

He was to have - - they were going in to see if they could get the little

cancer, it wasn‟t but about that big (indicating), and they were going in to

see - - they put a scope into his stomach to see. And then he was to have - -

the doctor decided that he needed a partial Whipple, which is they removed

of his stomach and so many feet of his intestine.

Deceased remained in the hospital until July 12, 2013. Upon his release from the

hospital, Deceased moved into Davis‟s house and lived there until his death on October

19, 2013.

According to Davis, Deceased made the decision to move into her house after he

was released from the hospital. When asked whether she encouraged or pressured

Deceased into making this decision, Davis replied: “No, I did not.” According to Davis,

Deceased chose to go to her house rather than return to his marital home “[b]ecause he

could not go where there were a bunch of cats.” Davis also testified that Deceased knew

that she had experience caring for other people and that he would get “twenty-four seven

care with [her].”

Davis stated that Deceased required “[t]wenty-four hour, seven” care after he was

discharged from the hospital. She explained that “[h]e had a drain tube out of his

stomach that had to be monitored and emptied and recorded so that Dr. Midis could know

what type of - - what - - how much fluid was coming out of his stomach.” Davis

explained that the drain tube had to be attended to “[e]very day . . . . [I]f it filled up, you

know, more than normal [she] had to empty it and then record it and then close it up

again so it could fill up again.” Deceased left the hospital with an infection and received

antibiotics through a midline. Davis explained:

It‟s a - - it‟s where that you can hook up IV‟s to it, and that was he had - -

first, you had a midline; then they put a port line in it that went all the way

up and in - - you know, and that had to be flushed each day, each morning,

each night, and if I - - if I gave him the antibiotics, why, then, it was in a

cylinder that they use in space that had to be specially this and brought to

the house from Fort Sanders.

Davis drove Deceased to all of his doctor‟s appointments because Deceased “was

not released to drive.” When asked whether she performed the actual caretaking of

Deceased, such as, feeding him, preparing meals for him, and providing all the food for

him, Davis stated: “That‟s correct.” When asked whether Deceased ever was able to

leave her home without her being present, Davis stated: “Yes.” She explained: “On July

the 24th he called his father-in-law to come down and let him in [the marital home]

because they had locked it up to where he could not even get in the house.” Deceased

needed to get into the house because “[h]e needed some paperwork, and he needed his

payment book on his truck and things like that.”

Davis made payments on Deceased‟s bills on his behalf. When asked whether

Deceased was totally dependent on her both financially and physically, Davis stated: “In

a sense yes because he did not have any money in his checking account or in his savings

account.” When asked whether Deceased depended on her to take care of him, Davis

testified: “He was basically - - yes, he was, because he asked if I would pay the bills and

then when he got well he would reimburse me.”

Deceased appointed Davis as his healthcare agent shortly after he was discharged

from the hospital. She stated that the Appointment of Health Care Agent form was

prepared by Tammy Widener, a patient advocate at Fort Sanders Hospital. When asked

whether Ms. Widener had conversations and consultations with Deceased before he

executed the Appointment of Healthcare Agent form, Davis answered: “Yes.” Davis was

not present during those conversations and consultations.

Davis testified that she prepared a Durable Power of Attorney, at the request of

Deceased, which appointed her as his agent. Davis used a Durable Power of Attorney

that had been prepared for her brother-in-law as a guide. On August 2, 2013, Davis took

Deceased to Tennessee Farm Bureau where the Durable Power of Attorney was signed

and notarized. According to Davis, she did not exercise any of her powers under

Deceased‟s Power of Attorney until after the Will was executed.

Davis testified that her husband, Deceased‟s father, made the appointment for

August 5, 2013 for Deceased‟s initial consultation with Attorney Martha Meares. Davis

drove Deceased to that appointment. When asked whether the appointment was for an

initial consultation about obtaining a divorce, Davis answered: “As far as I know, yes.”

Davis later testified, however, that she did not know what the appointment was for or

whether it was to discuss a divorce or something else. Davis did not know Attorney

Meares before Deceased‟s initial appointment and had never used her services before.

The meeting with Attorney Meares was at Attorney Meares‟s law firm, Meares &

Dillard. Davis thought that she remained in the room during the conference. Davis was

sitting at the same table as Deceased and Attorney Meares, but she did not hear all of

their conversation. When asked why she felt it was necessary to sit in the room with

Deceased while he met with his attorney, Davis stated: “I don‟t remember.” Davis could

not recall anyone else being with her at the time.

According to Davis, Deceased had not mentioned anything to her about making a

Will. When asked whether she heard any mention of a Will during the discussion in

Attorney Meares‟s office, Davis answered: “Yes, there was - - Ms. Meares requested - -

you know, said there was certain things that you had to do before that you could file a

divorce and one was a Will.” Davis did not overhear any discussion between Deceased

and Attorney Meares about the contents of the Will. Davis drove Deceased home after

his meeting with Attorney Meares, and Deceased did not mention anything to her about a

Will either in the car or at home. Davis only knew that Deceased had to return to

Attorney Meares‟s office the next day “[b]ecause it was mentioned that he had to return

the next day.”

Deceased executed the Will on August 6, 2013, the day after his initial

consultation with Attorney Meares. Davis testified that no one else accompanied them to

Attorney Meares‟s office on that visit. When asked whether she sat in the room with

Deceased while he executed the Will, Davis answered: “I was in the office part where

you first come in.” When asked to clarify whether or not she was in the room when

Deceased executed the Will, Davis explained: “No, I was not in there when they did it.”

Davis stated she was in “[Attorney Meares‟s] lobby” when Deceased executed the Will,

and that Deceased had gone into the conference room without her. Davis was not present

when Attorney Leith Marsh talked to Deceased about the Will on that day or when he

signed it.

Davis agreed that she had been present during the initial consultation and was

sitting at the same table when Deceased talked to Attorney Meares and expressed his

wishes. When asked to clarify whether the discussion about Deceased‟s wishes

concerned the Will or a divorce, Davis answered: “I don‟t know. I don‟t remember

which one.” Davis stated that she had no knowledge of the contents of Deceased‟s Will

until after his death.

Davis took Deceased to Attorney Meares‟s office to sign the complaint for

divorce, but stated that she did not see a copy of the divorce complaint at that time.

When asked whether she paid Attorney Meares for a divorce retainer and for preparing

the Will, Davis answered: “That‟s correct. [Deceased] asked if I would loan him the

money.” Davis wrote a check payable to Attorney Meares for $3,750.

According to Davis, Attorney Meares suggested that Deceased change his life

insurance beneficiaries before filing for divorce. Davis stated, “she indicated that if he

had any life insurance policies they needed - - the beneficiaries needed to be changed

before the divorce was filed.” Deceased made the initial calls to the insurance companies

to inquire about changing life insurance beneficiaries before he filed for divorce.

Davis and Deceased went to Tennessee Farm Bureau on August 6, 2013. When

asked whether she signed a change of beneficiary request form at that time, she replied:

“That is correct.” Davis testified that after finding out that Tennessee Farm Bureau

would not allow her to sign as Deceased‟s Power of Attorney, she took Deceased back to

Tennessee Farm Bureau on August 8, 2013. Davis stated that the Tennessee Farm

Bureau agent came out to the car. When asked whether that was because Deceased was

feeling weak that day, Davis stated: “He - - we - - he had been to the doctor, to his - - Dr.

Midis that morning. And as we came back from Knoxville we went by the Farm

Bureau‟s office.” The Tennessee Farm Bureau life insurance policy was for $110,000,

and Davis was named as the beneficiary after the change.

After Deceased‟s death, Davis received benefits from several life insurance

companies where Deceased had policies. Davis received $187,527.04 from a life

insurance policy with American General Life Insurance. Davis testified that the

beneficiary on the policy was changed after the Power of Attorney was executed, but she

stated: “That was [Deceased] was the one that changed - - that changed that.” When

asked whether she had to send in the Power of Attorney for the beneficiary change, Davis

stated: “I don‟t remember whether I did or not.” Davis did not remember the date the

policy was changed, but it was before Deceased filed for divorce.

Davis received $23,000 from American Income Life Insurance in December 2013.

Gena Tussey, Dan Tussey, Larry Davis, and Lisa Davis received benefits under that

policy as well. When asked whether the life insurance beneficiary was changed after the

Power of Attorney was executed, Davis stated: “Yes, it was after, but [Deceased] was the

one that - - that called the companies, he‟s the one that got the paperwork, he is the one

that signed it.” Davis stated: “He did all the signing, period, except the one at the Farm

Bureau, and he - - I said, [Deceased], you need to sign this. And he said, Mama, sign it.

And I says, [Deceased], I can‟t sign it. He said, Mama, I said to sign it.”

Davis received $40,000 from another life insurance policy with Central States

Southeast and Southwest Area Health and Welfare Fund. When asked whether Wife had

been listed as Deceased‟s beneficiary on his life insurance policies before the Power of

Attorney was executed, Davis answered: “I guess that‟s correct.”

Attorney Martha Meares testified. Attorney Meares had been a practicing

attorney since 1971. She first met Deceased on August 5, 2013, after he had been

released recently from the hospital. Deceased “didn‟t look well,” and he told her that he

was not well. She was unsure how long the first meeting lasted, but it was “a nice long

meeting.”

Attorney Meares was not certain who drove Deceased to the initial appointment

but his mother was with him. Davis was present when Attorney Meares met with

Deceased in the conference room. Attorney Meares explained:

I know his mother was there because I remember where she was sitting.

The conference room table was rectangular, and he and I sat at one corner

with me here (indicating) and him here (indicating), and - - and I know that

she was somewhere down at the other end of the table, and there may have

been somebody else down there, too, and I - - I can‟t remember for sure - -

Attorney Meares testified that there were three or four chairs along the long sides of the

conference room table. Davis was “maybe five to eight feet away” from Attorney

Meares and Deceased. When asked whether the conference room was quiet, Attorney

Meares answered: “I think the air conditioner was on.”

When asked why Davis joined Deceased in the conference room, Attorney Meares

explained:

Well, when someone‟s coming in to see me, it is not uncommon for moral

support to come along, for a family member to come. That‟s - - I‟d say that

happens more often than not when someone comes. Especially if they‟re

considering getting divorced, they have some moral support there.

When asked whether Davis sat quiet the entire time, Attorney Meares responded:

I don‟t have any memory of things that she might have said at all. When

I‟m doing an interview with a client or a potential client I‟m pretty much

focused on them. And he and I were sitting there like we were having a

private conversation, but there were probably other people in the room.

And she may have chimed in from time to time. I don‟t have any memory

of anything particular that she said.

Attorney Meares agreed that sometimes “[t]he moral supporters who have a real agenda

themselves” interject a lot, but she did not recall Davis behaving that way. Attorney

Meares stated that she and Deceased talked about a divorce, the Will, and insurance

policies while Davis was in the room. Attorney Meares did not remember whether Davis

remained in the room the entire time. When asked if she agreed that attorney/client

privilege is compromised when there is someone else participating, Attorney Meares

replied: “I would agree with that.”

Attorney Meares testified that she and Deceased “talked about everything” in the

initial appointment, and that Deceased mentioned both a divorce and a will early on in the

conversation. When asked whether Deceased came to see her for a divorce, Attorney

Meares explained:

He came in - - well, he was just telling me what was happening to him and

he was considering divorce. He wanted to change his Will. He wanted to -

- he was very upset. He was very angry with his wife. He was very upset

with his children. And he just generally told me the predicament that he

found himself in.

When asked whether Deceased indicated to her why he wanted a divorce, Attorney

Meares replied that “he was very angry at his wife, and he had been in the hospital and he

was upset that she hadn‟t visited him sufficiently and he was upset with his children that

they had not visited him sufficiently and he was upset at the condition of the home.”

When asked what Deceased said about the condition of the home, Attorney Meares

stated:

He said that it was full of cats and that he - - he thought it was adversely

affecting his physical condition and that she cared more about the cats than

she cared about him, and that they were nasty. And he - - he just described

the conditions as not habitable by - - at least by him, that he couldn‟t stay

there, especially in his - - with his physical condition. And that there kept

being more and more cats, and he may have told me the number, but it was

a lot of cats, not just one or two. And so he was angry about that.

He was angry about needing things. At one point he talked to me, and I

don‟t know if this was on the first day or not, but it may have - - may have

been, about the money being taken out of his account. He was upset about

that. And it - - that may have been the first day. I don‟t know for sure. I

talked to him on the phone after that several times.

Attorney Meares stated that Deceased “was upset about the money, [Wife] draining his

account.” Deceased told her about an incident that occurred when Deceased was in the

hospital and Wife visited him after working at the Blount County Animal Center.

Deceased told her that Wife got into his hospital bed in her work clothes, and Deceased

“felt like she had done it on purpose to contaminate his bed with those cat hairs or the

animal hair and everything . . . .” Deceased was very upset about that incident.

According to Attorney Meares, Deceased blamed Wife when he was unable to retrieve

some of his possessions from the marital home after he was released from the hospital.

The address Deceased listed as his address for the divorce complaint was the same

as the one that he gave for Wife. When asked whether it appeared that Deceased and

Wife still were living together, Attorney Meares stated: “Well, I remember that I think his

parents lived at an address close by that address.” She advised Deceased that, if he

wanted to change any life insurance beneficiaries, he would need to do so before filing

for divorce. Deceased signed the divorce complaint on August 9, 2013.

Attorney Meares testified that the first thing she usually does when a client wants

a Will is talk with them about their wishes. When asked whether Deceased already had a

Will, Attorney Meares responded: “I don‟t remember if he did. He wanted to make sure

his - - his wishes were to make sure that his wife did not inherit anything from him. That

was what he initially said to me . . . .” Attorney Meares stated that she did not tell

Deceased that he could not disinherit his wife under Tennessee law, but she did “talk

about dissent from a will.”

Deceased raised the issue of disinheriting his children in the initial meeting, and

Attorney Meares argued with him about it. When asked to describe the conversation,

Attorney Meares responded:

Because the first of the conversation, the emphasis was on [Wife] and - -

and the - - how unhappy he was with her behavior and how he - - it was

damaging to him. And then he said he wanted - - when we started talking

about the Will, he said he did not want to leave anything to his children at

all. And I said, well, now, wait a second, you know, I said, sometimes

when people are having - - when a husband and wife are having problems,

it polarizes the children and they have to choose one side or the other, and I

thought he would regret that. I wanted him to really think twice about

doing that before he did it. And - - well, I wanted him to think twice about

it all but - - but that was something that was . . . .

Attorney Meares further stated:

It kind of touched me, you know, that he wanted to write out the children

and not have them included, and I really quizzed him about that and

suggested that maybe he wouldn‟t want to do that, that - - was he sure about

it? I wanted to make sure that it wasn‟t just in the heat of the moment

while we were talking about her that he was lumping them with her. And I

really wanted him to consider each child individually. And we not only

talked about the children together, the girls, but we talked about them

individually. I don‟t remember the particulars about each one but I

remember I went over both . . . .

Deceased was very particular about what he wanted to do even after she tried to dissuade

him from disinheriting his children. Attorney Meares explained:

Well, I think he was firm in his decision. He - - he certainly - - I‟m pretty

persuasive, and he was not persuaded by me to change his mind about the -

- the children. I didn‟t try to dissuade him about the wife but I did about

the children, and I think he was - - was comfortable and relieved that he

was getting this done.

Deceased told her about Terran‟s illness and his previous plan to donate a kidney to her.

She stated:

He had told me that he had been tested to give her a kidney. I think that

may have been how he found out he was so sick, or part of it at any rate.

But he had - -yeah, he - - he did tell me about her kidney problems and that

he had been willing to become a donor for her before - - before this. So

that was even more of the reason of why he felt so offended is because he

had been willing to do that, and then I think he felt like they had abandoned

him or hadn‟t treated him right. He was - - he was angry about his

situation.

Attorney Meares did not remember whether or not Deceased ever mentioned that he and

Terran were hospitalized at the same time.

When asked whether she made any observation that would lead her to believe that

Deceased was being influenced, duly or unduly, by anyone to make the Will, Attorney

Meares stated: “I didn‟t think he was. He - - he was the one telling me what to do. I

didn‟t see any influence by anyone else.” Deceased was “assertive in his wishes” when

discussing the Will. Attorney Meares could not remember whether or not Deceased or

Davis told her that Davis held Power of Attorney for Deceased. Davis wrote her a check

for $3,750 for her services. When asked whether she observed Deceased ask Davis what

to do, Attorney Meares stated:

Uh-uh, no. (Negative) No. Those - - those wishes that he made known to

me that day were his and his only. And that‟s - - that‟s when I called - -

after we had kind of resolved the - - that part he - - I called [Attorney

Marsh] in and she took over.

Attorney E. Leith Marsh, another attorney at Meares & Dillard, prepared

Deceased‟s Will. Attorney Marsh was not present when Attorney Meares first met with

Deceased. When asked how Attorney Marsh obtained the information to prepare

Deceased‟s Will, Attorney Meares explained:

At some point during our meeting that day, I asked for [Attorney Marsh] to

come into the room with us, and I introduced her to [Deceased]. And I

talked about the - - his wishes and that he wanted a Will drafted and that he

wanted his wife specifically excluded and that he wanted his children

specifically excluded. And I asked her to then meet with him, continue a

meeting with him, to get the specifics of any bequests that he wanted to

make. And I think at some point I left [Deceased] with her and I left the

room.

Attorney Marsh testified that she was brought into the meeting between Deceased

and Attorney Meares when the subject of a Will arose. Attorney Marsh explained that

Attorney Meares left the room at some point to allow Attorney Marsh to “get the

specifics for the Will.”

Davis was present when Attorney Marsh and Deceased went over the specifics for

the Will. She also testified that she believed that Deceased‟s father was present as well.

They all were sitting around the conference table. When asked to recall the placement of

everybody at the table, Attorney Marsh explained:

[Deceased] was at the seat closest to the door. And his parents were at the

other end. And I was also - - I was right there next - - [Attorney Meares]

was originally at the end of the conference table, and I was to her right in

the - - directly across from [Deceased].

Attorney Marsh said that there could have been seats between Deceased and Davis, but

she was not sure exactly where Davis sat.

Attorney Marsh thought she had introduced herself to Deceased‟s parents. When

asked whether she knew why Deceased‟s parents were present during the meeting,

Attorney Marsh stated: “Well, I thought they had - - he was staying with them, he‟d got

out of the hospital, and I think they were his transportation.” Attorney Marsh could not

recall ever seeing Deceased drive, and she did not know whether he was able to drive or

not. Attorney Marsh did not recall when Deceased had gotten out of the hospital in

relation to the day of the initial appointment. When asked whether Deceased struggled or

had any difficulties at the first meeting, Attorney Marsh responded: “We always met in

the conference room because his mobility we were sensitive to. I think he had some type

of walking aid, a cane or something.”

Deceased told Attorney Marsh that he wanted to disinherit Wife and his children.

She believed that the reasons he gave her for wanting to do so were the truth. She stated:

“He told me that he was angry and upset that he hadn‟t been treated well by his wife or

his children and specifically that they hadn‟t come to see him in the hospital, did things

like that, and - - and that was why.” Attorney Marsh heard some of the discussion

regarding Deceased‟s Will during the initial consultation that Deceased had with

Attorney Meares, and she stated:

He was very specific that he did not want to leave anything to his wife or to

his daughters. His wife, he was planning on divorcing. And his children,

he felt, had taken her side not only in the marital relationship but also with

regards to his illness. And that really - - those two things really struck a

chord with him.

When asked whether she heard any attempt by Attorney Meares to change Deceased‟s

mind about disinheriting his daughters, Attorney Marsh answered: “She cautioned him

about that. You know, she has been doing this a long time and warned him that, you

know, children frequently get yanked around in a divorce situation, even adult children,

and do you really want to do that kind of thing.” When asked how Deceased responded

to Attorney Meares‟s counsel, Attorney Marsh explained: “He was very clear not only

were they taking her side in the divorce but, you know, he was sick with cancer and they

did not come see him, and that was - - that was very meaningful to him.”

Attorney Marsh testified that she prepared the Will in accordance with Deceased‟s

wishes. Attorney Marsh did not believe anyone was influencing Deceased‟s decisions.

While Davis spoke about Deceased‟s cancer during the August 5th appointment, Davis

did not voice her opinion as to what Deceased should put in the Will.

Attorney Marsh prepared the Will for Deceased, and he signed it the day after

their first meeting. When asked whether Davis came to the meeting when the Will was

executed, Attorney Marsh stated: “I think so. I - - I think she was his transportation.”

When asked to describe the process of Deceased‟s review of his Will before signing,

Attorney Marsh explained: “I made sure he read every word and was there for any

questions . . . .” Deceased reviewed the Will and he did not ask for any changes.

Deceased said he wanted to sign the Will.

Lisa Vitale, who was a legal assistant and paralegal at Meares & Dillard in August

2013, testified at trial. Ms. Vitale stated that she had twenty-four years of experience as a

legal assistant and paralegal. Ms. Vitale witnessed Deceased‟s Will. This was not the

first Will she had witnessed.

Ms. Vitale thought that Deceased‟s parents drove him to Meares & Dillard to

execute the Will. Davis remained in the waiting room and was not present when

Deceased signed the Will. The Will was executed in a side conference room on the first

floor of Meares & Dillard. Ms. Vitale was in the room along with Deceased, Jennifer

Meares, who was the other witness, Lucy Sherrod, who was the notary, and Attorney

Marsh, who prepared the Will, when the Will was executed.

Ms. Vitale did not review the Will with Deceased and was not present when

anyone went over the details of the Will with him. Ms. Vitale stated, however, that

Deceased had the opportunity to review the Will before he signed it. She could not recall

whether she saw Deceased review every page of the Will.

Ms. Vitale noted that Deceased was “adamant” about wanting to sign the Will.

Deceased signed the Will without any hesitation or reservation. Deceased signed the

Will in her presence and the presence of the other witness, Jennifer Meares, and the

notary. Ms. Vitale signed the Will in the presence of Deceased, Jennifer Meares, and the

notary. Ms. Vitale signed the attestation clause and an affidavit.

Ms. Vitale knew Deceased had cancer. She could tell from Deceased‟s physical

appearance that he was ill. When asked to describe how she could tell, Ms. Vitale

explained: “His physical form. You know, the - - the - - the hair loss and just the - - the

frailness of him. But he was - - he was pretty strong - - strong-minded and strong-willed,

knowing what he wanted to do.”

Ms. Vitale was not present during Deceased‟s initial consultation with Attorney

Meares regarding his divorce. Ms. Vitale stated that she did not believe that she prepared

the divorce complaint for Deceased, but she could not recall for certain.

Jennifer Meares testified that she had been employed at Meares & Dillard when

she witnessed the Will. She witnessed one other Will during her employment at Meares

& Dillard. The Will was executed in a conference room on the first floor at Meares &

Dillard. Ms. Meares remembered Deceased, Attorney Marsh, Lucy Sherrod, and Lisa

Vitale being the only people in the room besides herself at the time of the execution. Ms.

Meares did not know if Davis was in the room when the Will was executed or if Davis

was even in the office at all.

Deceased did not show any visible signs that made Ms. Meares think he was ill or

unhealthy. Attorney Marsh reviewed the Will with Deceased, but Ms. Meares was not

present for the review. Ms. Meares did not recall whether Deceased reviewed the Will

before he signed it, but he did go through it and initialed each page before signing.

Ms. Meares stated that neither she nor Ms. Vitale had to leave the conference

room to answer the phone or greet other clients during the execution of the Will.

Deceased indicated that he was signing his Will, and she saw him sign. The Will was

signed in her presence and the presence of the other witness, Lisa Vitale. Ms. Meares

signed the attestation clause in the presence of Deceased and Ms. Vitale. Deceased

signed the Will without any hesitation or reservation.

Martha Lucille Sherrod, another employee of Meares & Dillard, testified that she

was in the room when Deceased executed the Will. Ms. Sherrod testified that Deceased,

Attorney Marsh, Lisa Vitale, and Jennifer Meares also were present. Ms. Sherrod did not

recall whether Davis was in the room.

Ms. Sherrod stated that someone brought Deceased to the office the day the Will

was executed because, she believed, he was not driving at the time. She, however, could

not recall whether Davis brought Deceased. Ms. Sherrod knew that Deceased had been

ill because the fact that he was ill and had been in the hospital was mentioned and,

because he physically looked like he had been ill.

Ms. Sherrod was not in the room when Deceased reviewed the Will, but she

believed he had reviewed it with Attorney Marsh. Ms. Sherrod was present when

Deceased went through and initialed each page of the Will. Ms. Vitale and Ms. Meares

signed the Will as witnesses, and Deceased signed the Will in their presence. Ms. Vitale

and Ms. Meares swore for the affidavit, and Ms. Sherrod notarized it and placed her seal

upon it.

Ms. Sherrod did not notice any indication that Deceased was reluctant or hesitant

to sign the Will. Deceased “knew what he was doing” when he signed the Will. Ms.

Sherrod stated that after signing the Will, Deceased said he was happy to have it done.

Ms. Sherrod recalled Deceased coming in to sign the divorce complaint, but she did not

recall who paid for that work.

Bob Lynch, a retired Baptist minister, testified. He met Davis when she attended

Cedar Grove Baptist Church, and he met Deceased before his illness through visiting

Davis‟s home. Mr. Lynch stated that he really got to know Deceased after Deceased

became ill when he visited him in the hospital. Mr. Lynch first testified that Davis and

her husband asked that he visit Deceased in the hospital. He later testified, however, that

he was not certain that Davis asked him to visit Deceased. Instead, he stated that

Deceased‟s name came to the church as a prayer request, so Mr. Lynch visited Deceased

as part of his “ministerial duties.” Mr. Lynch visited with Deceased both in the hospital

and at Davis‟s home, though there was some confusion as to how often he visited. His

visits were brief lasting no more than ten or fifteen minutes.

Mr. Lynch stated that Deceased was optimistic about conquering his illness and

eager to return to work. When asked whether he had any conversations with Deceased

about his relationship with Wife, Mr. Lynch responded: “They were not getting along.

Things had deteriorated quite - - quite a bit.” Mr. Lynch testified that Deceased did not

ask him for any help with his marriage. Mr. Lynch did not offer to visit with Wife. Mr.

Lynch met Wife a couple of times at Davis‟s house when she was there visiting

Deceased.

Mr. Lynch testified that Deceased was upset because his daughters were not

coming to visit him very often. When asked whether Deceased attributed the lack of

visits to anything or any person, Mr. Lynch answered:

Well, hard to answer because he – he felt – he felt that - - that the family

was - - his family, the wife and the - - and the - - and the girls, were - - were

sort of against him and against him being - - being sick and - - and not

taking care of them.

Deceased had told Mr. Lynch that he was going to his parent‟s house when he was

discharged from the hospital. When asked if Deceased told him why, Mr. Lynch stated:

Yeah, he told me he did not feel that he was wanted at home and said that

things were not good there and he - - he didn‟t feel like that he was wanted.

And he wanted to go - - he wanted to go to his mother and dad‟s house.

When asked whether there were any conditions at the marital home that disturbed

Deceased, Mr. Lynch stated: “There were too many animals there, he said to me.”

When asked whether Deceased was a timid person or an assertive person, Mr.

Lynch stated: “Well, as I - - I knew him when he was sick, when he was ill, and he

couldn‟t be as - - as assertive as I - - I would suppose he was earlier. But he was pretty

sure of himself.” He stated further that “[Deceased] was his own man when I - - when I

talked with him.” Mr. Lynch testified that Deceased was able to make his own decisions

and was not relying on other people to make decisions for him.

When asked whether Deceased ever mentioned a Will to him, Mr. Lynch

answered:

It - - it was mentioned one day that he - - he needed to do something

because things were too unsettled. I - - I told him that he - - everybody

needed one. I suggested that he ought to do it pretty soon if he was going

to do something.

Mr. Lynch and Deceased never discussed whether or not Deceased made a Will.

Cay Campbell testified that she knew Deceased from elementary school, but they

were not close. She did not visit Deceased in the hospital or at his parents‟ house, but she

did speak with him once on the phone while he was staying with Davis and her husband.

When Ms. Campbell called Davis‟s house and Deceased answered the phone Ms.

Campbell thought he was his father because that is who she expected to answer. Ms.

Campbell was not sure whether Deceased was on any pain medication the day that they

spoke or how he was feeling at the time.

Deceased told Ms. Campbell it was the doctor‟s advice that he stay with his

parents. When asked whether she and Deceased had any discussion about why he was

staying at his parents‟ house and not his own home, Ms. Campbell answered: “He told

me that he ended up - - was really wanting things to be over because a lot of it and as to

what had happened and he told me he was sorry about as to what happened at the - - at

the reunion.” When asked to clarify what Deceased wanted to be over, she explained:

“His marriage.” Ms. Campbell testified that Deceased apologized to her for an incident

that occurred years earlier at a high school reunion when Wife acted inappropriately with

Ms. Campbell‟s husband. She testified that Deceased told her that he was ready for a

divorce.

Carolyn Smith worked at UPS with Deceased and knew him for twenty-five years.

Ms. Smith testified that her husband, Jack Smith, knew Deceased as well. Ms. Smith

visited Terran in the hospital. Ms. Smith believed Deceased loved his daughters and that

he was concerned about Terran because of her illness. Ms. Smith and her husband visited

Deceased once at Fort Sanders Hospital. She also visited him twice at Blount Memorial

Hospital. Her visits lasted less than an hour. Wife and Taylor came by while Ms. Smith

and her husband were visiting Deceased at Fort Sanders. She testified that Deceased‟s

other daughter, Terran, was not with them because she also was hospitalized at that time.

Ms. Smith never saw any other visitors on the two occasions that she visited Deceased at

Blount Memorial.

Ms. Smith saw no evidence of a bad marriage between Deceased and Wife. Ms.

Smith did see evidence of bad blood between Wife and Davis. Deceased told her he was

going to his mother‟s house when he was discharged from the hospital “due to a

multitude of cats at his - - at his home.” When asked whether Deceased had anything

else to say with regard to his choice to go to his parents‟ home, she stated: “Well, he was

just fearful because of the - - having an open wound and infection, so he needed a sterile

environment to - - to recover.”

Marilyn Corwin testified that she had known Wife “[f]or three-ish years” through

volunteering at the Blount County Animal Center, where Wife was employed. Ms.

Corwin knew that Deceased was in the hospital in June and July. She visited Deceased in

the hospital on the day of his surgery and saw Wife, Terran, and Taylor there. She stated

this was the only time she visited Deceased in the hospital.

While Ms. Corwin did not have much interaction with Deceased: “He was polite

and would greet [her] but that was pretty much it.” According to Ms. Corwin, the

relationship between Deceased and Wife “seemed to be a perfectly normal marital

relationship . . . .” She described it as “just what [she] expected.” When asked whether

she had ever gotten to see Deceased and Wife interact with each other, Ms. Corwin

answered: “Yes, the night after his surgery I went up to the room with her. And he was

come in - - was put in bed and made comfortable by the nurses. And she went over to

talk to him and they held hands and they talked a little bit.”

Ms. Corwin visited Terran in the hospital several times, and she saw Deceased

there. When asked whether Deceased would visit Terran prior to his hospitalization, she

stated: “Absolutely. He was there quite a bit with her.” When asked to describe

Deceased‟s relationship with Terran, Ms. Corwin testified that he was concerned and

worried about her. Ms. Corwin visited the home after Terran was released from surgery

in July. When asked whether Terran had any observable health conditions or issues, Ms.

Corwin responded:

She had several tubes in, she had had - - you know, she was on dialysis all

the time, she was trying to prepare for the - - I - - I call it personal dialysis,

PD is what they call it. I‟m not sure if those are the right terms; that‟s what

I call it. She was trying to prepare for that, so she had, you know, very

serious issues going on.

Ms. Corwin testified that she was at the house Deceased shared with Wife both

before his surgery and after Deceased moved into Davis‟s house. When asked what she

observed about Wife‟s house before Deceased‟s surgery, Ms. Corwin stated:

Well, I went there rather unexpectedly because we were volunteering at the

shelter and we needed to go get a kitten and [Wife] said do you want to go

with me. So she didn‟t know in advance that I was going to be coming to

her home that day. And I walked in and I thought, I wish my house looked

this good. It was neat and clean and very open and inviting. I also went

downstairs where she kept the kittens that she fostered that were little - -

little baby kittens, and they were in wire crates. And it was very clean. It

was not stinky. It was - - you know, kittens weren‟t running around; they

were in the crates because they were babies. And I did that on a couple of

occasions and every time I went it was - - it was a very nice home, I mean -

- ....

Ms. Corwin stated that while she was at the marital house only “two or three”

times before Deceased‟s surgery, she visited many times after he was released from the

hospital “because [Wife] needed support.” When asked whether she observed any

concerns like smells, cat hair, or uncleanliness on her visits, she stated: “There‟s always -

- when you have cats in the home, there‟s always fur. You can‟t get away from it, but it

wasn‟t excessive. It wasn‟t as much as is in my house.” The litter boxes were always

kept in the basement in the crates with the kittens.

After trial the Probate Court entered its order on April 17, 2015 finding and

holding, inter alia, that the Will was not the product of undue influence and, therefore,

was valid. The April 17, 2015 order incorporated the Probate Court‟s detailed

memorandum opinion in which the Probate Court specifically found and held, inter alia:

There‟s also some law that talks about having an unrestricted power

of attorney, does that create a confidential relationship, which I think it

does. Now, there was some discussion and argument and law, well, was it

actually used, so on and so forth, but I do think that there was a confidential

relationship between [Davis] and [Deceased]. And I base that upon just,

well, basically the facts of this case as we heard come in through the proof.

As it pertains to the power of attorney, I don't think that it really

makes a difference when it was used or if it was used. The fact that she

was in a position to be his power of attorney would imply I‟ve got a

confidential relationship with you because a power of attorney is giving

powers up to somebody. And, of course, they‟re under a fiduciary duty, but

it‟s hard to say someone‟s not in a confidential relationship with somebody

that they‟ve given a power of attorney to.

Additionally, it was interesting, she actually was the person who

procured the power of attorney. She typed it, she made it, and they

executed it, and there were some other facts, of course, that would support

that there was a confidential relationship. So I do find that . . . a

confidential relationship did exist between [Davis] and [Deceased].

Now, of course, I have to go to the next step if they want to shift the

burden over to the other side. Suspicious circumstances that would give

rise to the presumption that the will was obtained by undue influence. So,

one, [Davis] is [sic] a confidential relationship with him. What are some of

the suspicious circumstances that could create a presumption. His physical

and mental [sic] deteriorated such that it could overcome his freedom of

choice, overcome by the actions of others.

Now, there=s no question that he was in a state of physical

deterioration. There=s just not any question about that. Okay. Now, during

this time frame that we=re talking about there=s not C mentally, as far as

mental deterioration, I don=t think there=s any proof that he was mentally

deteriorated. In fact, also, the contestants, they abandoned that element of

attack on the will. And I think, based upon the proof that I=ve heard, that

mentally he had not deteriorated. Obviously, he=s under the stress of a very

serious illness, terminal, ultimately it was a terminal illness, and so I don=t

think mentally deteriorated. Now, physically he had, so C and who was

caring for him and under whose care was he, [Davis], so, I mean, that could

create some suspicion. There=s no question about it.

Active involvement in any beneficiary in procuring the will and

unduly profiting from it. Well, that could be suspicious. Ultimately, we

know in the end that [Davis] did profit from his will because she was a

beneficiary, so she did profit from it.

The procuring of the will. That could lead to some suspicion, too,

because [Davis] was [Deceased=s] transportation, and she, in fact, did take

him to the appointment where the will was discussed and where, ultimately,

the will was executed.

Now, interestingly, the proof was that the appointment that led to the

making of the will was not actually made by [Davis]. Actually, the inquiry

initially was by his father. That=s what the proof was in the case. Okay.

Now, she may or may not have been there with him. She may or may not

have said, hey, make that call. I don=t know any of those things, but those

are some interesting facts that are part of this case. But I can see how that

would be suspicious circumstances. Okay.

Now, also, the case with the going to the attorney, from what the

proof was, was actually based upon him going to discuss a divorce with

Ms. Meares, which, of course, that=s, frankly C and she gave testimony as

to that=s basically the majority of her practice is divorce. It=s not estates or

anything like that.

***

So the initial appointment, apparently, was to discuss a divorce that

[Deceased] wanted to file, and during that meeting is when a will was

discussed. And according to Ms. Meares, that was based upon her question

and intake C I think most attorneys call it C intake of a potential client.

That=s an area that she would always cover, and that=s how it became more

of a significant issue and led to the drafting of the will. But even given

that, it is suspicious that [Davis] was instrumental in him getting with the

attorney that actually drafted the will. Also, would led [sic] to suspicion,

potentially, is that she was present during the discussions. I mean, that is a

fact. Whether she participated in any of it, whether she had any influence

over the will C when I say the will, I mean, the willpower for [Deceased]. I

don=t know. I=m not saying that she did. I just don=t know, but she was

there. One thing I noticed in my notes that Ms. Meares stated she had no

recollection of [Davis] ever opining or stating anything regarding the

meeting there in the conference room, even though she was present.

The testator being in an emotionally distraught state. Of course, who

wouldn=t be in an emotionally distraught state if you were [Deceased] and

knowing what your medical situation is, so, obviously, he was in an

emotionally distraught state.

Unjust or unnatural nature of the will=s terms. The will attempted to

disinherit [Wife], and, of course, the law doesn=t allow him to absolutely

disinherit her because she can elect to take against the will. So, now, you

say, well, would that be unnatural, and a part of the contestants= case is that

they had a normal, loving relationship and everything was fine. However,

we can=t ignore the fact that his initial reason for going to Ms. Meares was

he wanted to file a divorce. So in that regard would it be unnatural for

someone who plans on divorcing their spouse to try and do what they could

to make sure they couldn=t inherit from them. It=s probably pretty common,

frankly. And, in fact, there is some law, not germane to this case, that

actually deals with divorce and remarriage and what effects it has on wills.

So, yes, is that unnatural as to her? Probably not, no. Unjust, of course, the

law provides for that. She can elect to take against the will.

Now, unnatural as to disinheriting his two daughters. That=s

unnatural, I would think. That isn=t a natural thing. So that leads to

suspicion. Okay. So those are all issues that are out there, that confidential

relationship with [Davis] and these suspicious circumstances. Based on

those facts, I do think that a presumption has been created. A presumption

has been created that there was undue influence based on the law and the

facts.

***

So looking at all of the facts, is there clear and convincing evidence

of the fairness of the transaction, and I=m using fairness in the legal term.

So what are some of the facts. Well, let me back up and first say I think

these are very relevant facts as to [Deceased], and what=s in the proof of

what his state of mind was as to what he was thinking. Was he frail and

easily taken advantage of, or was he a decisive person. Did he know his

own mind. Did he make his own decisions.

I talked about the power of attorney. On that, every indication was

that [Deceased] knew what he was doing on the power of attorney when he

executed it. He did it of his own free will, of his own free mind. And I

talked about did it create a confidential relationship, but it=s also significant

how it was used, and [Davis] never used the power of attorney except one

time. In fact, it was actually used after, as the proof showed, he actually

executed his will, and when she did use the power of attorney she was

using it explicitly at his direction. He was there and present when the

power of attorney was used, and it ended up being in error, and he had to go

back and redo what he was trying to accomplish.

But the testimony as to how C there was a statement, [Davis], words

to her effect was, basically, he [sic] said he was sitting there and he said,

Momma, just go in and sign it, as to the document he was changing the

beneficiaries on the insurance policies, and he had been told, and she had

been told that that was acceptable there at the Farm Bureau office. So I

think it created a confidential relationship as one of the factors because it

existed.

But that gave a little bit of indication as to, perhaps, who=s in control.

Is [Deceased]? Was [Deceased] of a frail mind? He appeared to be a fairly

assertive, confident person who C some of the things that Ms. Meares C

some of her statements as to C let=s see, here. She indicated that she did

not think that he was influenced by anyone. This was a quote. She said his

wishes were his and his only. These are impressions she formed of him

sitting in the office. Quote, he knew what he wanted to do, close quote.

She also said he was assertive in his wishes.

Now, that, and I coupled it a little bit, I mean, you=re trying to get a

picture of him. And then later on that day him telling his mother, Mom,

just go ahead and sign it. It=s indicative that he was directing what was

going on down there at the office. Not she directing, he directing. But in

any event, they didn=t accomplish what they thought they were

accomplishing that day. Then he goes back, physically goes back to the

office and signs that document on a later date and time, which is another

indication of he=s in charge, he knows what he=s doing.

Now, then you go back to this, who took him down there, and you go

back, well, [Davis] took him down there. Okay. No question that to a

great, great extent she was in physical control of him or just she and people

at her house. He was staying there. So that indication is that was his

choice, that he stayed there of his own free will. That was his choice.

Now, I know that=s contested by the contestants as to the will, however,

other third party statements and information indicate otherwise. Again, a

lot of this is based on the interview that Ms. Meares did with him, that he

was living there of his own free will. He was upset with his wife. One

reason he didn=t want to live there was because of all the cats. Now, I know

we heard testimony about that. That doesn=t mean that that is, in fact, true

that the cats were making a mess. This is based upon what he thought,

what he said, and one of the reasons he wanted out of the house was he

didn=t like the cats, that he thought it was unhealthy. He even went to the

point of having a conversation with Ms. Meares about there was an incident

when he was in the hospital and that his wife had come, allegedly, from the

animal shelter. And she was wearing her clothes from there and she=d laid

on his bed, and he felt, apparently, that that had contaminated his bed and,

frankly, it annoyed him greatly, from what I can gather from the proof that I

heard.

Now, whether he thought she did it intentionally or not, but the point

is it annoyed and angered him. Okay. Rightfully or wrongfully, that=s

apparently what happened, which kind of going into his mental state. He

was upset because he had tried to get his possessions from his house but

was unable and he blamed his wife for that. Now, I don=t know if this is the

incident that involved him not being able to get into the house and him,

ultimately, calling his father-in-law and him coming and unlocking the

door. And during this incident, apparently, there was some unpleasantness

with Taylor. She didn=t want to hug him or associate with him. I don=t

know if this is the same incident, however, these are all facts that are

adding up as to what his frame of mind and what he=s thinking and why he

would want to do what he wanted to do. I=m not saying it=s right, I=m not

saying it=s wrong. These are just facts that do exist, that existed in his life

that he was C and he blamed her for that.

He, apparently, went back to Ms. Meares. He was very angry with

his wife and his children. He felt as though they had not visited him in the

hospital enough, and, in fact, again, not right or wrong, but I don=t even

think it was disputed that Taylor might have visited him once. I think the

proof through her own testimony in the deposition was she visited him, I

think, twice from the time he went in the hospital to the time that he passed

away, somewhere one, two or three times. Okay. Don=t know why, not

blaming anyone, but that=s a fact which he would have, been cognizant of.

So, apparently, that was upsetting him. He specifically told Ms. Meares

that he wanted to disinherit his children and his wife. Part of the proof also

was that Ms. Meares tried to dissuade him from disinheriting his children.

She thought it was a mistake. Frankly, the impression C I can=t remember

if she said it or I formed the impression C she thought it was something that

he should really think about, and, frankly, would regret, is the impression

that I C but she was unable to dissuade him. That was on August the 5th.

Included in this analysis and these facts is does Ms. Meares qualify

as giving independent legal advice, okay, so that=s something to continue to

be considered. Is it independent legal advice that could potentially rebut a

clear and convincing evidence in and of itself, or is it just a fact, okay, and

are there other facts that, added together, create clear and convincing

evidence to rebut the fact.

I think this is real important, very important, that he talked about

what he wanted in the will on August the 5th, 2013. The first discussion

was with Ms. Meares in the context of the divorce proceeding. Then as it

became apparent to her he wanted a will, then another attorney in the office,

Ms. Marsh, she called her to come in and join in the meeting on August the

5th, which she did to take the lead on the will, which she did, and she sat

and she discussed with [Deceased] what he wanted in the will.

He reiterated to her or stated to her C and at this point in time

[Davis] is in the room, same setup as the conference room. She also stated

that he was very specific. He didn=t want to leave anything to his wife and

his children. He didn=t feel as though C this is according to her C that they

visited him and they were taking her side in the divorce. This is what she

said. I don=t know if there=d been prior discussions regarding divorce, I

don=t know, but that=s what she said. He was upset, basically, of their

treatment of him. Okay. That was August the 5th.

And this, I think, is real important is that it wasn=t one of those kind

of things where he says it, they got the document right there, he signs it and

goes on. They don=t have the document that day. She needs to draft the

document, so they leave. They don=t come back until the next day, August

the 6th. So there=s this period of time where he gets to reflect on what he

wants to do or what he=s told them he wants to do and what he wants to

happen, and I think that=s very important in the analysis.

He does come back again. Now, who brings him back? Well, of

course, he does come back with [Davis], so I mean that can be suspicious

right there as to her presence. Ms. Marsh, she says that they go over the

will very carefully, make sure that he reads every word in the will. He

don=t [sic] want any changes, he likes the will, and that the will is executed,

which I found was properly executed and admitted.

So did he receive independent legal advice which would C by clear

and convincing evidence independently which would rebut this

presumption of undue influence. I=m not saying that the advice he received

from Ms. Meares as a matter of law does not represent independent legal

advice, but I=m not going to find that it does, in fact, in and of itself C in

and of itself, constitute absolutely independent legal advice and, in and of

itself, would be rebut to presumption of undue influence. In and of itself it

does not do that. I don=t think it does.

I do think that it is a factor, and a very important factor in the Court,

considering looking at the totality of the circumstances, does the totality of

the proof rise to the level by clear and convincing evidence to rebut undue

influence, and I think it does. I think it does rebut that [Davis] exhibited

undue influence over [Deceased] and that the will is the product of undue

influence, and since I don=t think it=s the product of undue influence, then

the will is valid. The will is valid, and the estate should be distributed

pursuant to the last will and testament of [Deceased] executed on August

the 6th, 2013.

Wife, Terran, and Taylor appeal the Probate Court‟s April 15, 2015 order to this Court.

Discussion

Although not stated exactly as such, Wife, Terran, and Taylor raise one issue on

appeal: whether the Probate Court erred in finding that clear and convincing evidence had

been proven to rebut the presumption of undue influence. The Estate and the

Beneficiaries raise an issue regarding whether the Probate Court erred in finding that a

confidential relationship existed between Deceased and Davis giving rise to a

presumption of undue influence. Logically, we address the issue raised by the Estate and

the Beneficiaries first.

Our Supreme Court has explained:

In a will contest, a properly executed will may be challenged on a

theory that the decedent‟s mind was not “sufficiently sound to enable him

or her to know and understand the force and consequence of the act of

making the will” at the time the will was executed. In re Estate of Elam,

738 S.W.2d 169, 171–72 (Tenn. 1987). As this Court has said:

The testator must have an intelligent consciousness of the

nature and effect of the act, a knowledge of the property

possessed and an understanding of the disposition to be made.

While evidence regarding factors such as physical weakness

or disease, old age, blunt perception or failing mind and

memory is admissible on the issue of testamentary capacity, it

is not conclusive and the testator is not thereby rendered

incompetent if her mind is sufficiently sound to enable her to

know and understand what she is doing.

Id. (citations omitted).

Similarly, a will may be challenged on the basis that the decedent

was subject to the undue influence of another in executing the will. In

Tennessee, for example, where there is a “confidential relationship,

followed by a transaction wherein the dominant party receives a benefit

from the other party, a presumption of undue influence arises, that may be

rebutted only by clear and convincing evidence of the fairness of the

transaction.” Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995)

(citations omitted). A confidential relationship is any relationship which

gives one person dominion and control over another. See Mitchell v. Smith,

779 S.W.2d 384, 389 (Tenn. Ct. App. 1989).

The burden of proof regarding a confidential relationship rests upon

the party claiming the existence of such a relationship. See Brown v. Weik,

725 S.W.2d 938, 945 (Tenn. Ct. App. 1983). Once a confidential

relationship has been shown and a presumption of undue influence arises,

the burden shifts to the dominant party to rebut the presumption by proving

the fairness of the transaction by clear and convincing evidence. Matlock v.

Simpson, 902 S.W.2d at 386; see Gordon v. Thornton, 584 S.W.2d 655, 658

(Tenn. Ct. App. 1979). To prove the fairness of the transaction, the

dominant party may show that the weaker party received independent

advice before engaging in the transaction that benefitted the dominant

party. See Hogan v. Cooper, 619 S.W.2d 516, 519 (Tenn. 1981); see also

Richmond v. Christian, 555 S.W.2d 105, 107–08 (Tenn. 1977) (proof that

the donor received independent advice respecting the consequences and

advisability of the gift) (citations omitted).

Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002).

We first consider whether the Probate Court erred in finding that a confidential

relationship existed between Deceased and Davis. In Childress our Supreme Court cited

to Mitchell v. Smith wherein this Court explained:

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 which gives one person

dominion and control over another. Kelly v. Allen, 558 S.W.2d 845, 848

(Tenn. 1977); Turner v. Leathers, 191 Tenn. 292, 298, 232 S.W.2d 269,

271 (1950); Roberts v. Chase, 25 Tenn. App. 636, 650, 166 S.W.2d 641,

650 (1942). 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.

Mitchell v. Smith, 779 S.W.2d 384, 389 (Tenn. Ct. App. 1989) (quoting Iacometti v.

Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App.1973)). “A normal relationship

between a mentally competent parent and an adult child is not per se a confidential

relationship and it raises no presumption of invalidity of the transaction.” Bills v.

Lindsay, 909 S.W.2d 434, 440 (Tenn. Ct. App. 1993). We see no reason why this

principle should not apply as well when what is in question is a normal relationship

between a mentally competent adult child and a parent, as is now the case before us.

With regard to the issue of whether the Probate Court erred in finding that a

confidential relationship existed between Deceased and Davis giving rise to a

presumption of undue influence, the Probate Court specifically found and held, inter alia: