                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    July 16, 2008 Session

                          IN RE ESTATE OF LUCILLE RAY

                   HEIRS OF HOWARD RAY
                             v.
        MAGDALENE LONG AND JOSHUA (“JOSH”) TODD CREWS

                   An Appeal from the Chancery Court for Wayne County
                        No. 11378     Robert L. Jones, Chancellor



                  No. M2007-01799-COA-R3-CV - Filed December 30, 2008


This is a will contest. The decedent had three children, two daughters who survived her and a son
who predeceased her. Two months before the decedent’s death, she executed a will that left all of
her property to her daughters and some of their family members, but left nothing to any of the six
children of the predeceased son. After the decedent’s death, one of the daughters sought to probate
the will. The deceased son’s children filed this petition to contest the will, arguing that it was
procured through undue influence. After a jury trial, the jury found that the will had not been
procured through undue influence and was, therefore, valid. The son’s children now appeal the jury
verdict. We affirm, concluding that the evidence in the record supports the jury verdict.

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

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which J. STEVEN STAFFORD , J., and
WALTER C. KURTZ, SP . J., joined.

Judy A. Oxford, Franklin, Tennessee, for the appellants, Heirs of Howard Ray.

Randy Hillhouse, Lawrenceburg, Tennessee, for the appellees, Magdalene Long and Joshua Crews.

                                           OPINION

        Lucille Ray (“Decedent”) and her husband, Carry Floyd Ray, lived on 350 to 400 acres of
land in Wayne County, Tennessee. The Decedent’s husband predeceased her on July 1, 1996. The
Decedent died on December 14, 2003, at eighty-eight years of age.

      The Decedent and her husband had three children, two of whom survived the Decedent and
one who predeceased her. The two surviving children are Defendant/Appellee Magdalene Long
(“Long”) and Joyce Hess (“Hess”). The child who predeceased her was Howard Ray, who died in
June 1999. Howard Ray and his wife, Betty, had six children, the Plaintiffs/Appellants in this action:
Roger Ray, Karen Crews, Larry Ray, Julia Ducharme, Diann Portis, and Pam Ebert (collectively,
“Plaintiffs”).

       On October 13, 2003, two months before her death, the Decedent executed her Last Will and
Testament (“Will”), naming Long as the executrix. In the Will, the Decedent left all of her property
to Long, Hess, and to some of the children and grandchildren of Long and Hess. The Will totally
excluded the family of her deceased son, Howard Ray.

       On November 25, 2003, a few weeks after she executed the Will and less than a month before
her death, the Decedent transferred about 140 acres of the Wayne County property to her great-
grandson (Long’s grandson), Defendant/Appellee Joshua (“Josh”) Todd Crews, for the stated price
of $33,500. This property comprised about a third of the Decedent’s total real estate holdings.1

        On February 26, 2004, Long filed a petition in probate court to probate the Will executed on
October 13, 2003. An order was entered that day naming Long as the executrix of the Decedent’s
estate. On the same day, the Plaintiffs filed a lawsuit in the chancery court below against Long and
Josh Crews (collectively, “Defendants”) to set aside the November 2003 sale of property from the
Decedent to Josh and to enjoin Long from disposing of the Decedent’s assets. On September 28,
2004, the Plaintiffs filed a will contest in the probate court, alleging that the October 13, 2003
document was not the Decedent’s last will and testament, because the Decedent lacked the
testamentary capacity to make it, and because it was procured through undue influence.2 The
chancery court lawsuit and the will contest were consolidated and transferred to the chancery court
below.

        Discovery ensued. On October 16, 2006, the Defendants filed a motion for summary
judgment asserting that the Decedent was competent when she executed her Will, and that no undue
influence was exerted over the Decedent in the execution of the Will. In response, the Plaintiffs did
not contest the mental competency of the Decedent at the time she signed her Will. They claimed,
however, that genuine issues of material fact existed with respect to undue influence. After a
hearing, the parties reached an agreement on the motion. Consequently, on January 11, 2007, the
trial court entered an order on the summary judgment motion that had the effect of narrowing the
issues, leaving as the only issue for trial the issue of Defendant Long’s undue influence over the
Decedent. The matter was then set for trial.




         1
          This appears to be the same 139.9 acres that was devised to Josh Crews and his sister, Emily Crews Maghielse,
in the Decedent’s Will.

         2
         In the will contest petition, the Plaintiffs also argued that the purported W ill should be set aside because the
Decedent had contracted with her husband that all the property owned by them would be given to their children in equal
shares. This allegation was apparently abandoned by the Plaintiffs before the trial.

                                                           -2-
        The two-day trial was conducted on March 5 and 6, 2007. Seventeen witnesses testified. At
the outset, the jury heard testimony from James Ross (“Ross”), the attorney who drafted the
Decedent’s Will, about the execution of the Will.3 Ross had known the Decedent since about 1992
and described her as “feisty.” On the day the Decedent signed the Will, he said, she “was doing
pretty good” for an eighty-eight year old woman. Long had accompanied the Decedent to Ross’s
office, but was not involved in his discussions with the Decedent about her Will. Ross explicitly
discussed with the Decedent the fact that she did not want to include some people in her Will that
might otherwise have been included. He had “no question” that the Will set forth the manner in
which the Decedent wanted to dispose of her property, and that the devises were made freely and
voluntarily.

         Two secretaries employed by Ross, both of whom witnessed the Decedent’s Will, also
testified. They described the Decedent as competent and friendly. Both recalled that Long
accompanied the Decedent to Ross’s office on more than one occasion. One of the secretaries
testified that Ross asked the Decedent if she had read the Will, if she understood it, and if it disposed
of her property in the way that she wanted, and that the Decedent answered all of the questions
affirmatively.

         The jury also heard testimony from Betty Ray (“Betty”), the widow of Howard Ray, the
Decedent’s deceased son. Betty described her relationship with the Decedent as close. She said that,
after the Decedent’s husband died, Howard Ray and Long disagreed about whether to sell some of
their father’s cows and other items. After Howard Ray told the Decedent that Long and her husband
were “fixing to take everything she had,” Betty said, the Decedent told Betty that she felt that she
needed to sell her property because Howard was not well and she had no one else to help her with
the farm. Betty testified that she and Long also disagreed about the Decedent’s sale of some of her
land to Josh Crews in November 2003. Betty claimed that the Decedent told her that she intended
for everything to be divided equally among her three children at her death, but she felt she had no
choice but to sell her property to Josh because she needed the money. By the late 1990s, Betty said,
the Decedent was nervous, had high blood pressure, had reading difficulty, and could not see well
enough to read a magazine or write a check, let alone her new Will.

       The Plaintiffs submitted corroborating testimony by other relatives that the Decedent’s
eyesight was too poor to be able to read the Will. One relative testified that, in the months before
her death, the Decedent’s eyesight was so poor that she asked people to identify themselves when
they entered the room.

       Two of the Plaintiffs, Karen Crews (“Karen”) and Julia Ducharme (“Julia”), testified at trial.
Both said that their family had a good relationship with Long until the death of their father, Howard
Ray. After his death, both claimed, Long was not as loving toward Howard Ray’s children and
made them feel like they were no longer part of the family.


        3
        Ross had drafted the Decedent’s husband’s will prior to his death, and he had represented Long in a worker’s
compensation case in 1995 or 1996.

                                                        -3-
        Karen said the Decedent told Karen of her plans to transfer some of her land to Josh, stating
that she had no choice because she needed the money. Karen tried to persuade the Decedent not to
sell the land until they could speak again. While Karen was out of town, however, the Decedent
signed her Will and later nervously told Karen that the land transfer to Josh was a “done deal.” After
that, Karen said, the Decedent’s telephone was disconnected and the Decedent was spirited away to
Chattanooga and Memphis to visit with Joyce Hess and her family.

        The Decedent’s oldest grandchild, Plaintiff Roger Ray, testified that he lived near the
Decedent and, until 1998, saw her two or three times a week and helped her with chores on her
farm. Starting in1998, his employment required him to be gone much of the time, and he saw the
Decedent only two or three times a year until her death. In early October 2003, Roger Ray learned
that the Decedent planned to transfer some of her land to Josh. He visited the Decedent while she
was at Long’s house, to express his interest in purchasing some of the Decedent’s land. During the
discussion, he said, Long walked in the room, stopped the conversation, and said, “I don’t want to
hear anything else.” Without raising his voice, Roger Ray said, he walked out and said, “I’m through
with the whole bunch of you.” He later told his aunt, Joyce Hess, that he would not be at the
Decedent’s funeral. He in fact did not attend the Decedent’s funeral, but explained that this was
because, at the time, he had recently undergone surgery and could not attend for medical reasons.

       Long testified at trial. She has two children, Anthony Long and Kathy Crews (Josh’s
mother). From the time the Decedent’s husband died in 1996, Long had the Decedent’s power of
attorney, paid all of the Decedent’s bills, and took care of all her financial dealings.

       Long testified that she took the Decedent to see attorney Ross several times, and was at
Ross’s office when the Decedent signed her Will.4 The Decedent talked to Long about the Will
before she signed it, but Long maintained that she did not influence either Attorney Ross or her
mother in the making of her Will. Long was unsure whether the Decedent was able to read the Will,
and she had previously testified in her deposition that her mother’s eyesight had prevented her from
being able to read for the last fifteen years.

      The day the Will was signed, Long took the Decedent to her physician to make sure that she
was competent and “knew what she was doing.” Long said that the Decedent knew exactly what she
wanted to do, but was suffering from a broken heart because her grandchildren had turned against
her.

         Long said that, in October 2003, the Plaintiffs had been calling the Decedent about her
disposition of property, upsetting the Decedent. Consequently, on October 6, 2003, just before the
Will was signed, Long changed the Decedent’s telephone number to an unlisted number and did not
tell the Plaintiffs or the Decedent’s sister her new telephone number. After the Will was signed,
Long took the Decedent to Chattanooga to visit with her other daughter, Joyce Hess, for two weeks.


         4
           In her deposition, Long said that she was in the room when the Decedent signed her W ill, but at trial, she could
not recall whether she was in the room at the W ill signing or at the later deed signing.

                                                            -4-
In December, about a week before the Decedent died, Long took the Decedent to Memphis to stay
with Hess’s daughter, Kimberly. Two days after the Decedent returned from Memphis, she was
admitted to the hospital. Long did not call the Plaintiffs or the Decedent’s sister to tell them that
the Decedent had been hospitalized; she claimed this was because Roger Ray had told her not to
bother telling his family anything about the Decedent’s condition, because they would not come to
her funeral if she died. The Decedent died about a week after she was admitted to the hospital.

        Long testified that, except for Roger Ray, the Decedent did not have a close relationship with
the Plaintiffs after Howard Ray died in 1999. She maintained that Betty Ray had not been close to
the Decedent, as Betty had claimed. Long said that the Plaintiffs did not visit or contact the
Decedent and had little to do with her, and that Roger Ray was angry with the Decedent about selling
her property before she died and had ended their relationship.

       Josh Crews testified at trial that he saw the Decedent two or three times per week during
2003. Josh claimed that, on November 25, 2003, the Decedent gave him 139.9 acres of land for
$5.00. However, the deed showed that the consideration for the transfer was $33,500.

        The Defendants submitted the testimony of witnesses who knew the Decedent, saw her on
a regular basis, and believed that she was mentally competent until her death. One witness opined
that no one could “tell [the Decedent] what to do.”

        Joyce Hess, who lived in Chattanooga, also testified at trial. Hess has two children, Mike
and Kimberly. Kimberly was a beneficiary under the Decedent’s Will, but Mike was not. Hess said
that she visited her mother whenever she could, and that she spoke to her on the telephone every day.
Hess described the Decedent as a kind, independent, and “set-willed” person. She believed that her
mother was mentally competent up until her death.

        Hess corroborated Long’s testimony about the events that led the Decedent to make a new
Will in October 2003. Sometime in September 2003, the Decedent told Hess that she planned to sell
her property. The Decedent explained to Hess that Josh and Frank Long, Long’s husband, each
wanted a hundred acres, and she called Hess to ask if she would want the house and the remainder
of the land. Hess answered in the affirmative. The Decedent explained that Plaintiff Pam Ebert
(“Ebert”) had previously expressed an interest in buying ten acres, so the Decedent had Long call
Ebert to see if she was still interested in doing so. According to Hess, when Long called Ebert on
behalf of the Decedent for this purpose, the Plaintiffs became angry at the Decedent’s plan to sell
her land. Hess also said that she was talking to Long on the telephone during the confrontation
between Roger Ray and the Decedent about the land sale, and she heard Roger Ray’s remarks. After
that, Hess suggested to Long that she change the Decedent’s telephone number to an unlisted
number, so as to prevent the Plaintiffs from calling and harassing the Decedent. Because of this
controversy over the disposition of her property, the Decedent became resolved to make a new Will,
and she visited attorney Ross for this purpose. Hess denied that either she or Long had any influence
over the Decedent’s decisions regarding the Will. Hess noted that she and Long would have received



                                                 -5-
more from the Decedent’s estate if they had received a one-third child’s share rather than the share
each received under the Will as it reads.

        Portions of the deposition testimony of Dr. Esmeraldo Herrera (“Dr. Herrera”), the
Decedent’s treating physician, were read into trial. Dr. Herrera examined the Decedent on the day
she signed her Will, and he opined that the Decedent was mentally competent at that time and “very
capable of making any personal and business decisions.”

        At the conclusion of the trial, the jury deliberated and returned a verdict in favor of the
Defendants. On the jury verdict form, the jury specifically found that the Decedent had a
confidential relationship with Defendant Long, but that the Will was valid because it was not
obtained through undue influence. On April 2, 2007, the trial court entered a judgment on the
verdict. The Plaintiffs filed a timely motion for a new trial, which was denied. The Plaintiffs now
appeal.

         On appeal, the Plaintiffs challenge the jury’s verdict. In such a case, where “a trial court
approves a jury verdict, appellate courts may only review the record to determine whether it contains
material evidence to support the jury’s verdict.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 718
(Tenn. Ct. App. 1999) (citing Tenn. R. App. 13(d)). In reviewing a jury verdict, appellate courts
neither reweigh the evidence nor decide where the preponderance of the evidence lies. Barnes v.
Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704 (Tenn. 2000). “Instead, they determine whether
there is any material evidence to support the verdict, and, if there is, they must affirm the judgment.”
Overstreet, 4 S.W.3d at 718 (citing Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823
(Tenn. 1994)). Thus, in applying the “material evidence” standard, this Court must (1) take the
strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth of all
evidence that supports the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4)
discard all countervailing evidence. Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4,
5 (Tenn. 1978); see also Foster v. Bue, 749 S.W.2d 736, 741 (Tenn. 1988).

       This Court has explained the burden placed on a will contestant who seeks to prove undue
influence:

       Invalidating a will because of undue influence is generally not a simple undertaking.
       While undue influence can be proved either by direct or by circumstantial evidence,
       direct evidence is rarely available. In re Estate of Maddox, 60 S.W.3d 84, 88 (Tenn.
       Ct. App. 2001). Thus, in most cases, the contestants establish undue influence by
       proving the existence of suspicious circumstances warranting the conclusion that the
       will was not the testator’s free and independent act. Mitchell v. Smith, 779 S.W.2d
       384, 388 (Tenn. Ct. App. 1989). The courts have refrained from prescribing the type
       or number of suspicious circumstances necessary to invalidate a will because of
       undue influence. Instead, they have pointed out that the issue should “be decided by
       the application of sound principles and good sense to the facts of each case.”
       Childress v. Currie, 74 S.W.3d at 329; Halle v. Summerfield, 199 Tenn. 445, 454,


                                                  -6-
       287 S.W.2d 57, 61 (1956); Harper v. Watkins, 670 S.W.2d 611, 621 (Tenn. Ct. App.
       1983).

Kelley v. Johns, 96 S.W.3d 189, 195 (Tenn. Ct. App. 2002). One “suspicious circumstance”
supporting a finding of undue influence is a confidential relationship between the dominant party
and the testatrix. However, “[p]roof of a confidential relationship alone will not support a finding
of undue influence.” Id. at 196. “[I]f a contestant has proved the existence of a confidential
relationship, together with a transaction that benefits the dominant party to the relationship or
another suspicious circumstance, a presumption of undue influence arises that may be rebutted only
by clear and convincing evidence.” Id. (citing Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn.
1995)). Once the presumption of undue influence arises, “the burden of going forward shifts back
to the will’s proponent to prove by clear and convincing evidence that the challenged transaction or
gift was fair.” In re Estate of Maddox, 60 S.W.3d 84, 89 (Tenn. Ct. App. 2001). The proponent
of the will can make this showing by submitting proof that the testator received independent advice.
“[P]roof of independent advice becomes necessary only when it would be difficult to show the
fairness of the transaction or the competency of the testator without it.” Id.

        In this appeal, the Plaintiffs argue that no material evidence supports the jury’s finding that
the Decedent’s Will is not invalid as the product of undue influence. They claim that they were
entitled to a presumption of undue influence, because Long had a confidential relationship with the
Decedent, and the Decedent’s Will, a product of her influence, inured to Long’s benefit. Because
clear and convincing evidence did not rebut the presumption of undue influence, the Plaintiffs argue,
the jury’s verdict must be set aside.

         From a careful review of the record, we disagree. As noted above, our standard of review
mandates that we take the strongest legitimate view of the evidence in favor of the verdict and
discard the evidence to the contrary. The testimony submitted by the Plaintiffs and the Defendants
showed unequivocally that the Decedent was mentally competent when she made her Will on
October 13, 2003. Long clearly had a confidential relationship with the Decedent, as the jury found.
It is unclear whether the Decedent’s Will constituted a transaction that benefitted Long; under the
Will, Long received approximately one-fourth of the Decedent’s estate remaining after the 140 acres
was transferred to Josh Crews and his sister, Emily Crews Maghielse, whereas Long would have
received one-third of the estate had she taken a child’s share. Even assuming, however, that the
circumstances are sufficient to raise a presumption of undue influence, sufficient evidence was
submitted at trial to rebut by clear and convincing evidence the presumption that Long exerted undue
influence over the Decedent with respect to her October 2003 Will. Independent advice was proven
through the testimony of attorney Ross, who testified that Long did not influence the Decedent. He
spoke specifically to the Decedent about excluding some of her relatives in the Will, had “no
question” that the Will set forth the manner in which she wanted to dispose of her property, and
believed she disposed of her property freely and voluntarily. Indeed, while the testimony showed
that some family members disagreed strongly with the Decedent’s decision on the disposition of her
property, none of the witnesses testified that they saw Long exerting influence over the Decedent on
this issue or any other issues.


                                                 -7-
       The evidence clearly supports the jury’s finding that the Will was not the product of undue
influence and, therefore, was valid. Under these circumstances, we must affirm the trial court’s
judgment on the verdict.

       The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellants
Heirs of Howard Ray, and their surety, for which execution may issue, if necessary.




                                                     ___________________________________
                                                     HOLLY M. KIRBY, JUDGE




                                               -8-
