                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                DECEMBER 3, 2008 Session

                      BEVERLY WALLER v. BRENDA EVANS

                  Direct Appeal from the Circuit Court for Davidson County
                           No. 06P-813    Randy Kennedy, Judge



                    No. M2008-00312-COA-R3-CV - Filed March 17, 2009


In this appeal, we are asked to determine whether the decedent, Floyd Evans, Sr., possessed the
requisite mental capacity to execute a power of attorney naming his brother as attorney-in-fact, which
was subsequently used to change his life insurance and investment account beneficiary from his
daughter to his wife. Additionally, we are asked to determine whether a confidential relationship
existed between the decedent and his wife such that his wife exerted undue influence upon him in
having his beneficiaries changed just prior to his death. We affirm the trial court, finding that the
decedent possessed the requisite mental capacity and that the presumption of undue influence was
rebutted through independent advice.


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

ALAN E. HIGHERS, P.J.,W.S., delivered the opinion of the court, in which DAVID R. FARMER , J., and
HOLLY M. KIRBY , J., joined.

Larry B. Hoover, Nashville, TN, for Appellant

George J. Duzane, Dominic J. Leonardo, Nashville, TN, for Appellee
                                                      OPINION

                                    I. FACTS & PROCEDURAL HISTORY

          Floyd Evans, Sr. (“Decedent”) worked for Nashville Electric Service (“NES”) for forty-one
years prior to his death on April 12, 2006 at the age of sixty-three. Through NES, Decedent had both
a life insurance policy and a 457 investment account.1 In 1965, Decedent named his first wife as
beneficiary of the life insurance policy, but he later changed the policy to reflect his second wife as
beneficiary in 1977. In 1995, when he was unmarried, Decedent again changed the beneficiary of
his life insurance policy to reflect his daughter, Beverly Waller (“Daughter”), as beneficiary. He also
named Daughter as beneficiary of his 457 investment account in 2000.

        In approximately 1998, Decedent’s girlfriend, Brenda Evans (“Wife”) and her daughter, who
suffered from severe and complex disabilities, moved in with Decedent. On October 22, 2005,
Decedent and Wife were married, one month after Decedent was diagnosed with lung and brain
cancer. Four days later, on October 26, 2005, Decedent visited NES’ benefit office and added Wife
as the beneficiary of his survivor annuity. He also added his son, Floyd Evans, Jr., (“Floyd Jr.”), as
a contingent beneficiary of his life insurance policy, leaving Daughter as the primary beneficiary.
When asked whether he wanted to make any changes to his 457 account, Decedent declined, stating
that “they can get it when I die.”2

        On March 18, 2006, Decedent presumably received, in the mail, an employee benefits
statement reflecting Daughter as the beneficiary of both the life insurance policy and the 457
investment account. Subsequently, on March 20, 2006, Wife telephoned NES to request a change
of beneficiary form, which she claims was done at Decedent’s request. The following day, after
consulting with the NES legal department, NES employee Debra Pemberton informed Wife that
either Decedent or someone with a power of attorney would have to come into the office to sign the
form. Thereafter, from March 20, 2006 to March 30, 2006, NES received several phone calls from
Wife and Decedent’s brother, Lawrence Evans (“Lawrence”), requesting a change of beneficiary
form. Each time an NES employee explained that a power of attorney was needed as the employees
were unable to determine Decedent’s competency.

       Lawrence then contacted attorney Howard Skipworth (“Mr. Skipworth”) to draft a power of
attorney. According to both Mr. Skipworth and Lawrence, Mr. Skipworth met privately with
Decedent in Decedent’s home on April 4, 2006. On April 8, 2006, persons were assembled to
witness the execution of both a Quitclaim Deed of Decedent’s property to Wife and the General


         1
          At Decedent’s death, the life insurance policy was valued at $114,874.40 and the 457 investment account at
$14,865.32.

         2
           Only the life insurance policy and the 457 investment account are subject to this appeal. Furthermore, all
parties have stipulated that as of October 26, 2005, Decedent had capacity and was not, at that particular time, operating
under the influence of anyone.


                                                           -2-
Power of Attorney to Lawrence.3 Then, on April 12, 2006, two hours before Decedent’s death,
Lawrence visited the NES Benefit and Compensation Department with the power of attorney and
executed documents naming Wife as the primary beneficiary of both Decedent’s life insurance policy
and his 457 investment account.

        On May 23, 2006, Daughter filed a Complaint against Wife, Lawrence, and NES. However,
Daughter later non-suited Lawrence, and NES was dismissed after interpleading the funds at issue.
After a bench trial, the trial court issued a Memorandum Opinion and Order on January 8, 2008,
upholding the validity of both the quitclaim deed and the power of attorney. Daughter appeals.


                                         II. ISSUES PRESENTED

       Appellant has timely filed her notice of appeal and presents the following issues, slightly
rephrased, for review:

1.      Did Decedent have the mental capacity to make an informed decision at the time of the
        execution of the Power of Attorney; and

2.      Did a confidential relationship exist between Decedent and Wife and did this confidential
        relationship lead to undue influence by Wife, causing Decedent to change beneficiaries just
        prior to his death.

For the following reasons, we affirm the decision of the probate court.


                                      III.   STANDARD OF REVIEW

        On appeal, a trial court’s factual findings are presumed to be correct, and we will not overturn
those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d)
(2008); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to preponderate
against a trial court’s finding of fact, it must support another finding of fact with greater convincing
effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R.
Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)). “[T]his court gives great
weight to findings of fact that require the trial court to resolve ‘conflicts in the proof and to decide
the weight to be given witness’ testimony[,]” In re Armster, No. M2000-00776-COA-R3-CV, 2001
WL 1285904, at *7 (Tenn. Ct. App. Oct. 25, 2001) (quoting Brewington v. Sanders, No. 01A-01-
9301-CV-00002, 1994 WL 189626, at *4 (Tenn. Ct. App. May 18, 1994)), as “[t]he trial court is in
the best position to judge the credibility of the witnesses[.]” Id. (citations omitted). Finally, we


        3
            A Tennessee Statutory Durable Power of Attorney for Healthcare was also executed on April 8, 2006;
however, its execution is not at issue in this appeal.


                                                     -3-
review a trial court’s conclusions of law under a de novo standard upon the record with no
presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)
(citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

                                              IV. DISCUSSION

                                            A.    Mental Capacity

       On appeal, Appellant asserts that the chancery court erred in upholding the validity of the
power of attorney, and thus, impliedly finding that Decedent possessed the requisite mental capacity.
Appellant argues that “it is obvious that [Decedent’s] mental capacities were such that he did not
understand the consequences of the execution of th[e] power of attorney and therefore the power of
attorney should be invalidated.”4

        “The mental capacity required to execute a power of attorney equates to the mental capacity
required to enter into a contract.” Estate of Dooley v. Hickman, No. E2005-02322-COA-R3-CV,
2006 WL 2482967, at *6 (Tenn. Ct. App. Aug. 29, 2006) (citing Rawlings v. John Hancock Mut. Life
Ins. Co, 78 S.W.3d 291, 297 n.1 (Tenn. Ct. App. 2001) (explaining that “to have an agency
relationship under a power of attorney, the principal must have the capacity to contract”); In re
Armster, 2001 WL 1285904, at *7). This Court has explained the mental capacity required to
contract as follows:

                 Competency to contract does not require an ability to act with
                 judgment and discretion. All that is required is that the contracting
                 party reasonably knew and understood the nature, extent, character,
                 and effect of the transaction. Thus, persons will be excused from
                 their contractual obligations on the ground of incompetency only
                 when (1) they are unable to understand in a reasonable manner the
                 nature and consequences of the transaction or (2) when they are
                 unable to act in a reasonable manner in relation to the transaction, and
                 the other party has reason to know of their condition.

                 All adults are presumed to be competent enough to enter into
                 contracts. . . . It is not enough to prove that a person was depressed or
                 had senile dementia. To prove mental incapacity, the person with the
                 burden of proof must establish, in light of all surrounding facts and
                 circumstances, that the cognitive impairment or disease rendered the
                 contracting party incompetent to engage in the transaction at issue
                 according to the standards set forth above.



        4
           On appeal, Daughter does not address whether Decedent lacked the required mental capacity to execute the
quitclaim deed; thus, we will not consider this issue.


                                                       -4-
Id. (quoting Rawlings, 78 S.W.3d at 297 (internal citations and footnotes omitted)). Furthermore,
we have stated that “‘[t]he extent or degree of intellect generally is not in issue, but merely the
mental capacity to know the nature and terms of the contract.’” Ellison v. Ellison, No. E2007-
01744-COA-R3-CV, 2008 WL 4415768, at *7 (Tenn. Ct. App. Sept. 29, 2008) (citing Roberts v.
Roberts, 827 S.W.2d 788, 792-92 (Tenn. Ct. App. 1991) (quoting 17 C.J.S. Contracts § 133(1)(e))).
“Ultimately, contractual capacity is a question to be resolved on the facts of each case and the
surrounding circumstances.” Id. (citing Roberts, 827 S.W.2d at 792).

        The party asserting a principal’s lack of capacity as grounds for invalidating a power of
attorney bears the burden of proof, and “‘[that] proof must be clear, cogent, and convincing.’” Estate
of Dooley, 2006 WL 2482967, at *6 (quoting In re Armster, 2001 WL 1285904, at *8 (citations
omitted)). The degree of mental capacity required to enter into a valid contract is a question of law;
however, whether a party possessed such required degree is a question of fact. See Nashville, C. &
St. L.R. Co. v. Brundige, 84 S.W. 805, 805 (Tenn. 1905). Because the trial court made no express
finding that Decedent possessed the required mental capacity to execute the power of attorney, we
must “review the record to determine where the preponderance of the evidence lies without
employing a presumption of correctness.” Boote v. Shivers, 198 S.W.3d 732, 740 (Tenn. Ct. App.
2006) (citation omitted).


        As we stated above, Decedent executed the power of attorney on April 8, 2006. The record
includes Decedent’s medical record from Alive Hospice Inc., which provides evidence concerning
Decedent’s mental capacity during that month. First, a Nursing Note dated April 5, 2006, lists
Decedent as “semicomatose,” “dependent,” “very lethargic,” and “drows[y].” However, it also
states the Decedent “will wake briefly and converse appropriately.” The following day, Hospice
services were refused, but a Social Work Note lists Decedent as “in and out of drowsy condition.”
The record does not include any medical records made between April 7, 2006 and April 9, 2006.
Instead, the next medical record comes from April 10, 2006, and describes Decedent as “forgetful,”
“confused,” “dependent,” “drows[y],” and “weak[].”

        Many witnesses also testified before the trial court concerning Decedent’s mental capacity.
Mr. Skipworth, whose deposition was read at trial and is included in the record before us, testified
about his meetings with Decedent on both April 4, 2006 and April 8, 2006. Mr. Skipworth explained
that after receiving a visit from Lawrence informing him that his brother was dying and wanted to
see a lawyer, he scheduled a visit with Decedent on April 4, 2006. After Decedent and Mr.
Skipworth introduced themselves, Mr. Skipworth told Decedent that he “would speak to him and
try to do [his] best to advise him on whatever he needed to do, or wanted to do.” Decedent
responded by saying, “I want to make sure that my wife stays in this house” and that “Lawrence, my
brother, knows what I want done with the rest of the property.” Mr. Skipworth testified that
Decedent spoke clearly enough to be understood and stated that, to his knowledge, he was not under
the influence of any mind-altering drugs. Mr. Skipworth stated that although Decedent was taking
medication for his illness, “he understood what he was doing.” Mr. Skipworth testified that before
getting into the “legalese” with Decedent on April 4, 2006, he asked Decedent if he knew the names
of the President of the United States, the mayor of Nashville, the governor of Tennessee, and all of

                                                 -5-
his children. Decedent answered correctly to all. Mr. Skipworth also asked Decedent to identify
how many fingers Mr. Skipworth was holding up, which he answered correctly.

        Mr. Skipworth also testified concerning April 8, 2006, the day the power of attorney was
executed. He stated that Decedent seemed “to be as alert, if not more alert” than when he met with
Decedent four days prior. He explained that when he arrived at Decedent’s home on April 8, 2006,
he walked into the kitchen and “[Decedent] was talking and [the people in the room] were joking
with him, and he was carrying on a conversation with a couple of people.” He further testified that
on April 8, 2006, he “went over the documents one by one” with Decedent, explaining “the legal
ramifications of each one of them.” With respect to the power of attorney, Mr. Skipworth testified
that he likely told Decedent:

               Mr. Evans, you know that I am Howard Skipworth, and I’m an
               attorney at law. And you requested that I draft a document called a
               general durable power of attorney. And that document, as I have
               explained to you in the past, is a very dangerous document. That a
               person that has possession of this, that you’ve named as attorney in
               fact, can take this document, he or she can close out your checking
               account, they can sell your property, they can close out your checking
               account or savings account, take the money and go to Mexico.

After explaining the power of attorney, Decedent acknowledged that he understood the ramifications
of executing such. Although Mr. Skipworth admitted that at times during the execution process
Decedent seemed to become bored and once had to be reminded to focus, Mr. Skipworth testified
that “[i]f [he] had not felt [Decedent] was competent to execute [the documents], they would not
have been executed.”

        Peggy Mathis, the Public Administrator, also provided testimony before the trial court related
to Decedent’s capacity at execution. She testified that after Decedent’s death when she went to
Decedent’s home to inventory his property, she stated to Wife, “I heard that you gave a shot to your
husband to wake him up [on April 8, 2006] and I really want to know what that is I could use
[some].” She claims Wife then replied “Oh no, it wasn’t me it was my sister.” However, on cross-
examination, Ms. Mathis acknowledged that she did not ask Wife to clarify; therefore, she could not
be sure that “shot” did not merely refer to a “shot of cowboy coffee” which Decedent drank.

        Some of Decedent’s friends also testified as to Decedent’s capacity. Holmer Hunter, who
worked with Decedent for over forty years, testified that when he visited Decedent on April 5, 2006,
Decedent did not know him and was “out of his head.” Similarly, Allen Maxey, with whom
Decedent had drank coffee at the Waffle House nearly every day for fifteen years, testified that the
week before Decedent died, Decedent told him that he was planning to return to work the following
week. Mr. Maxey also testified that he saw Decedent on April 8, 2006, April 9, 2006, and April 11,
2006, and each day he was “out of it.” However, Bob Miller, who had also known Decedent for
fifteen years, testified that he visited Decedent almost every day from March 23, 2006 until


                                                 -6-
Decedent’s death. He stated that there was never a time that Decedent did not recognize him,
although he “would wake up for a minute and say [‘]Bob[’] or something like that and go back out.”

         Decedent’s family members also testified concerning Decedent’s mental capacity. Floyd Jr.
stated that on the morning of April 8, 2006 Decedent did not recognize him, and later that day when
he saw him at the kitchen table Decedent was “slumped over and not responding to [any]thing.”
Floyd Jr. further stated that he had been told that Decedent had been given a shot “to get him alert
because the lawyer wouldn’t be able to do his job if [Decedent] wasn’t alert.” However Wife
testified that on the date of execution, April 8, 2006, Decedent recognized her as well as Mr.
Skipworth and both witnesses, Carroll Richardson and Linda Bess, and she denied any knowledge
of Decedent receiving a shot to wake him up. She stated that during the last week of Decedent’s life
he was merely tired, not confused. Lawrence also testified that on April 8, 2006, despite being tired,
Decedent appeared to recognize him, Mr. Skipworth, Wife, and Carroll Richardson. He further
stated that to his knowledge no one gave Decedent a shot to wake him up. Likewise, Donna Goad,
Wife’s sister, testified that on April 8, 2006, Decedent was alert and recognized her, Mr. Skipworth,
and the witnesses, Mr. Richardson and Ms. Bess. She denied giving Decedent a shot to wake him
up and agreed that Decedent gave her no “reason whatsoever to lead [her] to believe [that Decedent]
did not know what he was doing[.]”

         Finally, the witnesses to the execution of the power of attorney testified. Carroll Richardson
testified that on April 8, 2006, Decedent knew both him and Mr. Skipworth and seemed to
understand the documents being executed. Although he acknowledged that, at times, while others
were conversing, Decedent laid his head down and did not join in the conversation, Mr. Richardson
stated that Decedent was able to carry on a conversation with him and was able to answer Mr.
Skipworth’s questions. Similarly, Linda Bess testified that at the execution Decedent recognized her
and appeared to understand the documents he signed.

         Based on the foregoing testimony, we find that Appellant failed to show by “clear, cogent,
and convincing” proof that Decedent did not “reasonably kn[o]w and underst[and] the nature, extent,
character, and effect” of executing the power of attorney. See Estate of Dooley, 2006 WL 2482967,
at *6 (citations omitted). Thus, we find Decedent possessed the requisite mental capacity to execute
the power of attorney.


                                           B.    Undue Influence

       On appeal, Daughter also claims that a confidential relationship existed between Wife and
Decedent which led to the exertion of undue influence upon Decedent such that Decedent changed
his beneficiaries just prior to his death.5 Therefore, she asserts that the power of attorney and all
subsequent actions affected by such should be invalidated.


        5
           Daughter does not raise as an issue on appeal whether Decedent was unduly influenced into executing the
quitclaim deed. Therefore we will not address this issue on appeal.


                                                       -7-
         “The most common way of establishing the existence of undue influence is ‘by proving the
existence of suspicious circumstances warranting the conclusion that the [action] was not the
[decedent’s] free and independent act.’” Estate of Hamilton v. Morris, 67 S.W.3d 786, 792 (Tenn.
Ct. App. 2001) (quoting Mitchell v. Smith, 779 S.W.2d 384, 388 (Tenn. Ct. App. 1989)). The most
frequently used “suspicious” circumstances are: “(1) a confidential relationship between the testator
and the beneficiary; (2) the testator’s poor physical and mental condition; and (3) the beneficiary’s
involvement in the procurement of the will in question.” Id. (citing Mitchell, 779 S.W.2d at 388).
However, other suspicious circumstances are also recognized: “(1) secrecy concerning the will’s
existence; (2) the testator’s advanced age; (3) the lack of independent advice in preparing the will;
(4) the testator’s illiteracy or blindness; (5) the unjust or unnatural nature of the will’s terms; (6) the
testator being in an emotionally distraught state; (7) discrepancies between the will and the testator’s
expressed intentions; and (8) fraud or duress directed toward the testator.” Id. at 792-93 (citing
Mitchell, 779 S.W.2d at 388).

        Although there exists no prescribed number of suspicious circumstances which must be met
in order to invalidate an action, “the doctrine of indue influence is applicable only where there is a
confidential relationship[.]” In re Estate of Brevard, 213 S.W.3d 298, 302 (Tenn. Ct. App. 2006)
(citing Keasler v. Estate of Keasler, 973 S.W.2d 213, 219 (Tenn. Ct. App. 1997); Simmons v. Foster,
622 S.W.2d 838, 840 (Tenn. Ct. App. 1981); see also Moore v. Green, No. M2000-03203-COA-R3-
CV, 2004 WL 547008, at *5 (Tenn. Ct. App. Mar. 18, 2004); Pendola v. Butler, No. M2002-00131-
COA-R3-CV, 2003 WL 21766257, at *5 (Tenn. Ct. App. July 31, 2003); Parham v. Walker, 568
S.W.2d 622, 624 (Tenn. Ct. App. 1978); 25 Am.Jur.2d Duress and Undue Influence § 31 (1996);
95 C.J.S. Wills § 351 (2001)). “Confidential relationships can assume a variety of forms, and thus
the courts have been hesitant to define precisely what a confidential relationship is.” Kelley v.
Johns, 96 S.W.3d 189, 197 (Tenn. Ct. App. 2002) (citing Robinson v. Robinson, 517 S.W.2d 202,
206 (Tenn. Ct. App. 1974)). However, “[i]n general terms, it is any relationship that gives one
person the ability to exercise dominion and control over another.” Id. (citing Givens v. Mullikin ex
rel. Estate of McElwaney, 75 S.W.3d 383, 410 (Tenn. 2002); Childress v. Currie, 74 S.W.3d 324,
328 (Tenn. 2002); Mitchell, 779 S.W.2d at 389).

        Confidential relationships come from two sources: “(1) ‘legal confidential relationships’ and
(2) ‘family and other relationships.’” In re Estate of Brevard, 213 S.W.3d at 302-03 (quoting
Matlock v. Simpson, 902 S.W.2d 384, 385-86 (Tenn. 1995)). “A ‘legal confidential relationship’ is
a ‘fiduciary relationship . . . or any other relationship where the law prohibits gifts or dealing
between the parties.’” Id. (quoting Matlock,902 S.W.2d at 385-86). Fiduciary relationships are
confidential per se, but do not “make out a prima facie claim of undue influence unless the
contestant establishes an additional suspicious circumstance[.]” Id. (quoting Kelley, 96 S.W.3d at
197). However, family relationships are not confidential per se and thus, “the contestants must prove
the elements of domination and control in order to establish the existence of a confidential
relationship.” Id. (quoting Matlock, 902 S.W.2d at 385-86). Proof of a family relationship “coupled
with proof of domination and control” establishes a confidential relationship, “but does not make
out a prima facie claim of undue influence unless an additional suspicious circumstance exists.” Id.
(citing Kelley, 96 S.W.3d at 197). Thus, the existence of a fiduciary relationship presumes a


                                                   -8-
confidential relationship, while a family relationship requires proof of “domination and control” to
establish that a confidential relationship exists.

        “The dominant rule in Tennessee and elsewhere is that the existence of a confidential
relationship, followed by a transaction wherein the dominant party receives a benefit from the other
party, [raises] a presumption of undue influence[.]”6 Matlock, 902 S.W.2d at 386 (citing Hogan v.
Cooper, 619 S.W.2d 516 (Tenn. 1981); Richmond v. Christian, 555 S.W.2d 105 (Tenn. 1977);
Estate of Depriest v. Allen, 733 S.W.2d 74 (Tenn. Ct. App. 1986); Brown v. Weik, 725 S.W.2d 983
(Tenn. Ct. App. 1983); Roberts v. Chase, 166 S.W.2d 641 (Tenn. Ct. App. 1942); 19 A.L.R.3d 575,
596). However, this is not a conclusive presumption. See Estate of Neely, No. M2000-01144-COA-
R3-CV, 2001 WL 1262598, at *5 (Tenn. Ct. App. Oct. 22, 2001). “It can be rebutted, but only by
clear and convincing evidence of the fairness of the transaction.” Id. (citing Matlock, 902 S.W.2d
at 386). The receipt of independent advice, while not required, is one way to prove such fairness.
See Hogan, 619 S.W.2d at 519, 520 (citations omitted). We may also “consider the totality of the
evidence” to determine the fairness of the transaction. See Gordon v. Thornton, 584 S.W.2d 655,
658 (Tenn. Ct. App. 1979); see also Taylor v. Taylor, No. M2007-00565-COA-R3-CV, 2008 WL
1850807, at *4 (Tenn. Ct. App. Apr. 24, 2008) perm. app. denied (Oct. 17, 2008) (“The nature of
proof of fairness necessary to overcome the presumption of undue influence is, of course, largely
dependent on the particular facts of the case at issue.”).

                                          1. Confidential Relationship

         Because undue influence can only be found where a confidential relationship exists, we must
first determine whether Decedent and Wife were in a confidential relationship. As we noted above,
the existence of a fiduciary relationship presumes a confidential relationship, while the finding of
a confidential relationship based on familial ties requires the additional proof of “domination and
control.” See In re Estate of Brevard, 213 S.W.3d at 302-03 (citations omitted). Thus, to determine
whether a confidential relationship existed, we must first determine whether a fiduciary or family
relationship is involved.

       A confidential relationship arises–through a fiduciary relationship–between a principal and
attorney-in-fact to a power of attorney when the power of attorney has been exercised and the
attorney-in-fact was active in its procurement. See In re Conservatorship of Groves, 109 S.W.3d
317, 351 (Tenn. Ct. App. 2003) (citing Childress, 74 S.W.3d at 329). Although a power of attorney
was executed and exercised in this case, Lawrence, not Wife, was acting as the attorney-in-fact.
Therefore, a fiduciary relationship did not exist between Decedent and Wife. However, a


         6
            “‘The presumption of undue influence extends to all dealings between persons in fiduciary and confidential
relationships, and embraces gifts, contracts, sales, releases, mortgages and other transactions by which the dominant party
obtains a benefit from the other party.’” Parish v. Kemp, No. W 2007-02207-COA-R3-CV, 2008 W L 5191291, at *4
(Tenn. Ct. App. Dec. 11, 2008) (citing Parish v. Kemp, 179 S.W .3d 524, 531 (Tenn. Ct. App. 2005) (quoting Gordon
v. Thornton, 584 S.W .2d 655, 658 (Tenn. Ct. App. 1979))).



                                                           -9-
confidential relationship can still be found if: 1) a family relationship existed and 2) Wife exercised
dominion and control over Decedent.

         The party claiming the existence of the confidential relationship has the burden of proving
such. Brown v. Weik, 725 S.W.2d 938, 945 (Tenn. Ct. App. 1983) (citing In re Estate of Rhodes,
436 S.W.2d 429, 435 (Tenn. 1968)). “‘The question of whether a confidential relationship existed
is a question of fact, and this Court gives great deference to the Trial Court’s findings of fact.’”
Smith v. Smith, 102 S.W.3d 648, 652 (Tenn. Ct. App. 2002) (quoting Brantley v. Mayo, No. 02-
A01-9710-GS-00261, 1998 WL 900341, at *3 (Tenn. Ct. App. W.S. Dec. 28, 1998)). Wife’s Brief
to this Court states that “[t]he [t]rial [c]ourt did not err in finding a confidential relationship existed
between [Decedent] and [Wife], but this confidential relationship did not lead to undue influence[.]”
Although Wife’s Brief suggests that the trial court found a confidential relationship, we do not
believe the court so found.7 Therefore, “we will review the record to determine where the
preponderance of the evidence lies without employing a presumption of correctness.” Boote, 198
S.W.3d at 740 (Tenn. Ct. App. 2005) (citing Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.
1997)).

         As Decedent and Wife were married, a family relationship obviously existed between the
two. Likewise, we find that Wife was in a position of “domination and control” over Decedent, and
therefore a confidential relationship existed between Decedent and Wife. As we noted above, the
Alive Hospice Nursing Notes dated March 31, 2006, April 5, 2006, April 10, 2006, and April 12,
2006 all describe Decedent as “dependent” and two list him as “weak[].” Furthermore, witnesses
testified as to Decedent’s dependency. Bob Miller stated that Decedent needed constant care the last
week of his life and Wife’s sister, Donna Goad, testified that during the last three weeks of
Decedent’s life, “[Decedent] looked to [Wife] to take care of him when no one else was there[,]” and
that “[Wife] did the most care.” Wife helped Decedent bathe, helped him to the bathroom, cooked
his meals, and dispensed his medication. Additionally, Wife testified that during those last three
weeks she was with Decedent “essentially 24 hours a day 7 days a week[,]” although she claimed
that Decedent was not “totally dependent” on her.

         As further evidence of Wife’s “domination and control,” the record reveals that Wife
seemingly controlled access to Decedent. According to Mr. Hunter, he went to Decedent’s house
on April 7, 2006, but despite his “beat[ing] on the door” no one answered. Similarly, Daughter
testified that when she telephoned Decedent during the last week of his life she was always told he
was asleep although once she could hear Decedent talking in the background. She also claimed that
she visited Decedent’s home but no one answered the door. Finally, Wife was in a position to refuse
Hospice services.

         7
           The trial court’s Memorandum Opinion and Order specifically found that “[t]he use of a power of attorney
by Lawrence to transfer the life insurance benefit and the 457 account benefits to [Wife] was not the product of undue
influence but was an extension of a free and voluntary act on the part of [Decedent] who consciously and independently
authorized his brother Lawrence to accomplish goals which were conclusively and properly intended by [Decedent] to
benefit [Wife], the person most beloved by [Decedent].” The trial court did not specifically address whether a
confidential relationship existed between Decedent and W ife.


                                                        -10-
        Based on the foregoing evidence, we find that Decedent was under Wife’s dominion and
control. See In re Estate of Neely, 2001 WL 1262598, at *4 (finding dominion and control where
decedent relied on his daughter for his financial and physical needs, including dispensing medication,
assisting his movement from a bed to a recliner, and either sitting with him or hiring a sitter). Thus,
having found a confidential relationship, we must next determine whether such relationship led to
undue influence being exerted upon Decedent by Wife.

                                         2. Undue Influence

        Whether a person exerted undue influence over another is a question of fact. In re Estate
of Price, No. E2007-00523-COA-R3-CV, 2008 WL 762389, at *10 (Tenn. Ct. App. Mar. 24, 2008)
perm. app. denied (Sept. 29, 2008) (citing Gibson v. Gibson, No. W2004-00005-COA-R3-CV, 2004
WL 2464271, at *3 (Tenn. Ct. App. Nov. 2, 2004)). Therefore, we must presume the correctness
of the trial court’s finding–that Decedent was not unduly influenced–unless the preponderance of
the evidence is otherwise. Tenn. R. App. P. 13(d).


        “[T]he existence of a confidential relationship, followed by a transaction wherein the
dominant party receives a benefit from the other party, [raises] a presumption of undue influence[.]”
Matlock, 902 S.W.2d at 386 (citations omitted). Because we found that Decedent and Wife were
in a family relationship wherein Wife was in a position of “domination and control” over Decedent,
a confidential relationship existed. Likewise, we find that this confidential relationship, coupled
with the execution of a power of attorney through which Wife ultimately became the beneficiary of
Decedent’s life insurance policy and 457 investment account, raises a presumption that the benefit
was procured through undue influence. We find no requirement that Wife be a party to the document
providing the benefit. Instead, we think that Wife ultimately benefitted is enough.


        To overcome the presumption of undue influence, the fairness of the transaction must be
proved by clear and convincing evidence. In re Estate of Troutman, No. E2007-01959-COA-R3-
CV, 2008 WL 2521410, at *5 (Tenn. Ct. App. June 25, 2008) (citing Matlock, 902 S.W.2d at 386;
Gordon, 584 S.W.2d at 658). The receipt of independent advice by the weaker party may prove such
fairness. Id. However, proof of independent advice is not required as we may alternatively
“consider the totality of the evidence” to determine whether the transaction was fair. See Childress,
2000 WL 1035952, at *3 (citing Gordon, 584 S.W.2d at 658). Our Supreme Court has defined
adequate independent advice as follows:
               Proper independent advice in this connection means that the donor
               had the preliminary benefit of conferring fully and privately upon the
               subject of his intended gift with a person who was not only competent
               to inform him correctly as to its legal effect but who was furthermore
               so disassociated from the interests of the donee as to be in a position



                                                 -11-
               to advise with the donor impartially and confidently as to the
               consequences to himself of his proposed benefactions.


Richmond v. Christian, 555 S.W.2d 105, 109 (Tenn. 1977) (quoting Turner v. Leathers,232 S.W.2d
269, 271 (Tenn.1950)).


         The record contains considerable evidence regarding Decedent’s interactions with Mr.
Skipworth. First, Mr. Skipworth’s deposition provides testimony concerning his initial contact with
Decedent’s family as well as his meetings with Decedent on April 4, 2006 and April 8, 2006. Mr.
Skipworth testified that Lawrence visited his office and informed him that Decedent was dying and
wanted to talk to an attorney. Therefore Mr. Skipworth telephoned Decedent a few days later and
scheduled to meet with him. On April 4, 2008, Mr. Skipworth entered Decedent’s home and was
directed to his bedroom, where the two met privately with the bedroom door closed for, as Lawrence
testified, approximately one hour. Mr. Skipworth told Decedent of Lawrence’s visit to his office
informing him that Decedent wanted to speak with an attorney. Mr. Skipworth then told Decedent
that he “would speak to him and try to do [his] best to advise him on whatever he needed to do, or
wanted to do.” Mr. Skipworth testified that Decedent responded by saying “I want to make sure that
my wife stays in this house” and that “Lawrence, my brother, knows what I want done with the rest
of the property.” After asking Decedent questions to determine his competency, Mr. Skipworth then
suggested he draft a deed putting Wife’s name on the property. Mr. Skipworth then discussed
executing a power of attorney listing Lawrence as attorney-in-fact. Mr. Skipworth spoke specifically
about what a power of attorney could do, and, as discussed above, Mr. Skipworth explained the
dangers of such a document, pointing out that Lawrence could “take his money and go to Mexico.”
 However, Floyd replied, “I trust my brother with my life, and he knows what I want done.”


        Regarding the date of execution, April 8, 2006, Mr. Skipworth testified that although he did
not personally read the documents in their entireties, nor explain each paragraph, he reiterated to
Decedent the dangers of executing a power of attorney. Decedent acknowledged that he understood
the ramifications of executing such. Trial witnesses corroborated this testimony. Lawrence, Wife’s
sister, and Carroll Richardson each testified that Mr. Skipworth explained the documents to
Decedent on April 8, 2006, before they were executed. Additionally, several witnesses testified that
Mr. Skipworth remained at Decedent’s home for one and a half hours to a “couple of hours” on the
date of execution, therefore allowing ample time for such explanations to have occurred. Finally,
Mr. Skipworth testified that he was not directed either by Wife or Lawrence as to what documents
he should prepare for Decedent. In fact, he stated that he did not know Lawrence before he was
contacted to consult with Decedent and he “never had a discussion with [Wife] concerning the[]
documents.”




                                               -12-
       We find the above testimony presents clear and convincing evidence of independent advice
to Decedent in executing the power of attorney. Therefore, Wife has successfully rebutted the
presumption of undue influence and the trial court’s finding of no undue influence is affirmed.


                                       V. CONCLUSION


       For the aforementioned reasons, we affirm the decision of the probate court. Costs of this
appeal are taxed to Appellant, Beverly Waller, and her surety, for which execution may issue if
necessary.




                                                     ___________________________________
                                                     ALAN E. HIGHERS, P.J., W.S.




                                              -13-
