                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON

                                                                     FILED
JOHN BRANTLEY, KATHY B.              )
SKINNER, ALISON BRANTLEY             )                               December 28, 1998
WILLIAM THOMAS MAYO and              )
RICHARD MAYO,                        )                               Cecil Crowson, Jr.
                                     )                               Appellate C ourt Clerk
       Plaintiffs/Appellees,         )      Madison General Sessions No. 9360
                                     )
vs.                                  )
                                     )      Appeal No. 02A01-9710-GS-00261
ROBERT MAYO and KATHRYN              )
MAY GILTNER,                         )
                                     )
       Defendants/Appellants.        )




       APPEAL FROM THE GENERAL SESSIONS COURT OF MADISON COUNTY
                         AT JACKSON, TENNESSEE




               THE HONORABLE WALTER BAKER HARRIS, JUDGE




For the Plaintiffs/Appellants:       For the Defendants/Appellees:

Jesse H. Ford, III                   John Van den Bosch, Jr.
Jackson, Tennessee                   G. William Hymers, III
                                     Jackson, Tennessee



                                     REVERSED AND REMANDED


                                     HOLLY KIRBY LILLARD, J.


CONCUR:


W. FRANK CRAWFORD, P.J., W.S.


ALAN E. HIGHERS, J.
                                                                             OPINION

             This is a probate case. The decedent set up joint accounts with right of survivorship with her

two surviving children. The surviving children were named co- executors of the decedent’s estate.

The trial court removed the decedent’s children as co-executors of the estate and found that these

accounts were assets of the decedent’s estate, not joint accounts. The decedent’s surviving children

appeal. We find that the evidence was insufficient to support a finding of undue influence, and

reverse the decision of the trial court.

             M a r y T . M a y o F ie ld i n g ( T e s ta tr ix ) d i e d t e s ta te o n M a y 2 1 , 1 9 9 0 . H e r w ill le f t o n e - f o u r th o f

h e r e s t a t e t o e a c h o f h e r s u r v i v i n g c h i l d r e n , Robert Brown Mayo (“Mayo”) and Kathryn Mayo Giltner

(“Giltner”), a n d d i v i d e d t h e o t h e r h a l f a m o n g t h e c h i l d r e n o f h e r t w o d e c e a s e d c h i l d r e n . T h e w i l l w a s

a d m i t t e d to p r o b a te o n J u n e 9 , 1 9 9 0 , a n d is n o t c o n te s t e d in t h i s a c t i o n . I n h e r w i l l , T e s t a tr i x n a m e d

h e r tw o s u r v i v i n g c h i l d r e n , M a y o a n d G i l t n e r , d e f e n d a n t s / A p p e l la n t s , a s c o - e x e c u t o r s .

             T h is d i s p u t e a r o s e o v e r t h e s t a t u s o f c e r t a i n a c c o u n t s w i th J . C . B r a d f o r d & C o m p a n y h e l d b y

T e s t a t r i x . T h e a c c o u n t s w e r e s e t u p a s j o i n t a c c o u n ts w i t h r i g h t s o f s u r v i v o r s h i p , w i t h T e s t a tr i x a n d

th e c o - e x e c u t o r s , th e d e f e n d a n t s M a y o a n d G iltn e r , a s jo in t te n a n ts . I f th e a c c o u n t s w e r e c o n s id e r e d

p a r t o f T e s ta t r i x ’ e s t a t e a n d d i s tr i b u t e d u n d e r h e r w i l l , T e s ta t r i x ’ g r a n d c h i l d r e n w o u l d h a v e r e c e iv e d

a p o r t i o n o f t h e f u n d s . T h e T e s t a tr ix ’ g r a n d c h i l d r e n f il e d t h i s a c t io n , c h a l le n g i n g t h e s t a tu s o f th e

a c c o u n ts a n d r e q u e s t i n g t h a t t h e d e f e n d a n t s b e r e m o v e d fr o m         t h e ir p o s i t i o n s a s c o -e x e c u to r s .

             At the trial, the plaintiff grandchildren contended that Testatrix had been the victim of undue

influence by defendants Mayo and Giltner. The proof at trial showed that Testatrix kept detailed

records of all her affairs and managed her own business matters until she became ill in 1989.

Testatrix underwent heart bypass surgery on July 19, 1989, and continued to suffer from poor

physical health until her death in 1990.

             Dr. James J. Diffee, Testatrix’s doctor, testified as to her physical health prior to her death

in May 1990. Testatrix suffered from atherosclerotic heart disease, intermittent congestive heart

failure, functional bowel disease and anemia, along with other more minor problems. Dr. Diffee

stated that he did not notice mental deterioration during the time he treated the Testatrix, however,

his only contact with Testatrix was related to her health, and not to her business concerns. Dr. Diffee

repeatedly stated that he had no knowledge of Testatrix’s mental ability as related to her business

affairs.

             Giltner, Testatrix’s daughter, testified that she usually accompanied Testatrix to her
appointments with Dr. Diffee and often contacted the doctor’s office on behalf of her mother.

Family members testified that Giltner and Mayo took care of such things as doctor appointments and

upkeep on Testatrix’ home and rental properties.

        Defendant Mayo testified at trial that he moved home to Jackson, Tennessee from

Birmingham, Alabama in 1984. At that time, Testatrix placed Mayo’s name on her checking

account so that he could “write checks for her and do what she wanted [him] to do.” Testatrix held

several certificates of deposit at Fidelity Federal Bank, now Union Planters Bank, in her own name.

Mayo testified that, in 1989, Testatrix asked him to find an account that would bear higher interest

than did her certificates of deposit. Mayo informed his mother that he maintained an account at J.C.

Bradford Company that earned eight percent interest. Mayo then introduced Testatrix to Terry

Nance, vice-president at J.C. Bradford, who opened two stock market accounts for Testatrix.

Testatrix had never before done business with J.C. Bradford, and had never before dealt in the stock

market. Although several witnesses at trial testified as to Testatrix’ business acumen, more than one

witness remarked that they were surprised to see Testatrix become active in the stock market at that

point in her life, when she had no prior experience in that area.

        Testimony at trial established how the J.C. Bradford accounts at issue were set up and

funded. One account was opened in October 1989 and the other was opened in November 1989.

One account was set up with Testatrix and Giltner as joint owners, and the other was set up with

Testatrix and Mayo as joint owners. The J.C. Bradford employees who opened the accounts testified

at trial, and could not say whether Testatrix knew what “joint ownership with rights of survivorship”

meant. The J.C. Bradford employees were unsure whether Testatrix actually requested joint

accounts with survivorship rights.

        The trial court ruled that “the J.C. Bradford accounts are assets of the estate, and not joint

accounts.” The trial court did not put in its order the reason for the ruling. However, in its oral

ruling, the trial court stated:

        . . . [W]ith respect to the accounts at J. C. Bradford Company, where the deceased
        had never done any business before, was taken out by relatives and did, in fact, create
        the documents with the right of survivorship. The Court does hold that those are, in
        fact, estate assets.




                                                  2
Mayo and Giltner now appeal this decision. On appeal, they argue that the trial court erred in its

decision to include the J. C. Bradford accounts as assets of Testatrix’ estate.

        We review the trial court’s judgment de novo, with a presumption of the correctness of the

trial court’s findings of fact. Rule 13(d) of the Tennessee Rules of Appellate Procedure.

       The party seeking to invalidate a transaction because of undue influence has the burden of

proof. Williamson v. Upchurch, 768 S.W.2d 265, 269 (Tenn. App. 1988). Tennessee case law

reflects the well-settled presumption “that any transaction benefiting the dominant party in a

confidential relationship is invalid where there is proof that the dominant party exercised dominion

or influence over the weaker party.” Williamson, 768 S.W.2d at 269 (citing Gordon v. Thornton,

584 S.W.2d 655, 658 (Tenn. App. 1979); Roberts v. Chase, 25 Tenn. App. 636, 651, 166 S.W.2d

641, 650-51 (1942)). “[O]nce the presumption arises, the burden shifts to the dominant party to

demonstrate that the transaction is proper.” Id. (citing Parsley v. Harlan, 702 S.W.2d 166, 174

(Tenn. App. 1985); Howell v. Davis, 43 Tenn. App. 52, 59-60, 306 S.W.2d 9, 12 (1957)). However,

the party seeking to invalidate the transaction must first establish a confidential relationship.

       Generally, a confidential relationship is one “which gives one party dominion or influence

over the other.” Williamson, 768 S.W.2d at 269. “[P]roof of a confidential relationship will not,

by itself, give rise to the presumption of invalidity. It must be accompanied by proof tending to

show that the free agency of the weaker party was destroyed and replaced by the will of the dominant

party.” Id. (citations omitted). “Evidence of one party's deteriorated mental or physical condition

will substantiate the existence of a confidential relationship as well as the ability of the dominant

party to influence the weaker party.” Id.; see Fritts v. Abbott, 938 S.W.2d 420, 420-21 (Tenn. App.

1996). The elements of undue influence are:

       dominion and control by the stronger over the weaker, or there must be a showing of
       senility or physical or mental deterioration of the donor or that fraud or duress was
       involved, or other conditions which would tend to establish that the free agency of
       the donor was destroyed and the will of the donee was substituted therefor.

Fritts v. Abbott, 938 S.W.2d 420, 420-21 (Tenn. App. 1996) (quoting Kelly v. Allen, 558 S.W.2d

845, 848 (Tenn. 1977)). Defendants may rebut the presumption of undue influence by proof of the

fairness of the transaction, established by a preponderance of the evidence. Reynolds v. Day, 792

S.W.2d 924 (Tenn. App. 1990). The fairness of the transaction may be demonstrated by showing




                                                  3
that the Testatrix had independent advice during the transaction. Crain v. Brown, 823 S.W.2d 187,

194 (Tenn. App. 1991) (citing Richmond v. Christian, 555 S.W.2d 105 (Tenn. 1977)).

       The question of whether a confidential relationship existed is a question of fact. Fritts, 938

S.W.2d at 421; see Matlock v. Simpson, 902 S.W.2d 384 (Tenn. 1995). No particular set of

circumstances requires a finding of undue influence. Instead, “the undue influence issue should be

decided by the application of sound principles and good sense to the facts of each case.” Mitchell

v. Smith, 779 S.W.2d 384, 388 (Tenn. App. 1989) (quoting Halle v. Summerfield, 199 Tenn. 445,

454, 287 S.W.2d 57, 61 (1956)).

       Defendants rely on a recent Tennessee Supreme Court case, In re Nichols, 856 S.W.2d 397

(Tenn. 1993), which involves facts similar to this case. In Nichols, Testatrix willed “all [her]

property, real and personal[,]” to her son and her two grandchildren, in equal shares. Nichols, 856

S.W.2d at 398. Testatrix also purchased or renewed seven certificates of deposit prior to her death,

and established those accounts in joint tenancy with right of survivorship with her son. Testatrix

died, and the certificates of deposit transferred to son as sole owner. One grandchild filed suit to

establish the certificates of deposit as part of the estate. The record contains testimony from the

Testatrix’s lawyer, who stated that Testatrix had informed him that she “wanted her estate to be

divided equally between the three” beneficiaries of her will. Id. Testatrix also informed her lawyer

that she “had instructed [son] as to what he was to do with the certificates of deposit, that they were

all to be divided equally between him and the two grandchildren.” Id. Testatrix stated that she

trusted her son to do her will, even though it was not the law. Id.

       The trial court found the certificates of deposit to be part of the estate, and was affirmed by

the Court of Appeals. The Tennessee Supreme Court reversed, finding that ownership of the

certificates of deposit purchased after January 1, 1989 was controlled by the provisions of Tennessee

Code Annotated § 45-2-703(e)(1) (Supp. 1992), which states in pertinent part:

               A designation of “joint tenants with right of survivorship,” or substantially
       similar language, shall be conclusive evidence in any action or proceeding of the
       intentions of all named that title vests in the survivor.

Nichols, 856 S.W.2d at 399. In this case, the accounts at issue were established after January 1,

1989; consequently, Tennessee Code Annotated § 45-2-703(e)(1) applies.




                                                  4
         In this case, there was evidence from which the trial court could conclude that Testatrix

placed trust and confidence in Mayo and Giltner, relying on them for such items as keeping up with

appointments and taking care of her home and rental properties. There was testimony regarding

Testatrix’ deteriorated physical condition after her heart surgery. Witnesses testified that Testatrix

had never before opened accounts such as those at J.C. Bradford and that they were surprised to see

her do so.

         However, the testimony of Testatrix’ physician was that he noticed no mental deterioration

during the time in which he treated her, from the time of her heart surgery until her death. There is

no evidence that Testatrix’ mental condition deteriorated to permit Mayo and Giltner to have

“dominion or influence” over Testatrix. Williamson, 768 S.W.2d at 269. There is simply no

evidence from which the trial court could conclude that Testatrix’ “free agency . . . was destroyed

and replaced by the will of the dominant party [Mayo and Giltner].” Id. Consequently, the evidence

is insufficient for the trial court to find a confidential relationship that would create a presumption

that any transaction benefitting Mayo and Giltner would be invalid. See id. Accordingly, the

decision of the trial court, holding the creation of the joint accounts invalid and including the joint

J. C. Bradford accounts in Testatrix’ estate, must be reversed.

         The decision of the trial court is reversed, and the cause is remanded for further proceedings

consistent with this Opinion. Costs on appeal are assessed against Appellees, for which execution

may issue if necessary.




                                            H O L L Y K IR B Y L IL L A R D , J .

C O N C U R :



W . F R A N K C R A W F O R D , P . J ., W .S .



A L A N E . H I G H E R S , J .




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