                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                November 16, 2011 Session

     IN RE: THE ESTATE OF FRANKLIN STEADMAN MURDAUGH,
         BARBARA MURDAUGH WARNER v. RUDY W. YOUNG

             Direct Appeal from the Chancery Court for Madison County
                      No. 64704     Tony Childress, Chancellor


               No. W2011-00041-COA-R3-CV - Filed December 8, 2011


This case arises from a will contest. Appellant, the executor and sole beneficiary of the
contested will, appeals the trial court’s finding that Appellant did not met his burden to rebut,
by clear and convincing evidence, the presumption of undue influence based upon the
existence of a confidential relationship between Appellant and Decedent. Finding no error,
we affirm.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and H OLLY M. K IRBY, J., joined.

J. Colin Morris, Jackson, Tennessee, for the appellant, The Estate of Rudy W. Young.

Mark S. McDaniel, Memphis, Tennessee, for the appellee, Barbara Murdaugh Warner.

                                          OPINION

        Franklin Steadman Murdaugh (“Decedent”) died testate on February 24, 2006, at the
age of forty-three. The Decedent was a college graduate, an accomplishment he achieved
in his mid-thirties. He was unmarried and had no children. Decedent had a long history of
alcohol and drug abuse. The Decedent executed a will dated September 9, 2004 (the “Will”).
It is undisputed that an attorney assisted the Decedent in preparing the Will. Dr. Rudy W.
Young, a dentist, (“Appellant,” or “Proponent”) is the Decedent’s cousin-in-law. Dr. Young
was named as the Executor and sole beneficiary of the Will. It is undisputed that Dr. Young
was aware, in September 2004, that the Decedent had executed the Will and that the Will
named him as the sole beneficiary.
        Dr. Young’s dental license has been suspended several times for various offenses,
including prescribing large amounts of controlled substances. Dr. Young provided dental
care to the Decedent, starting in 1989 and continuing until Decedent’s death. According to
the record, Dr. Young prescribed hydrocodone to the Decedent, despite Dr. Young’s
knowledge of Decedent’s addiction problems. On December 4, 2008, Dr. Young entered
guilty pleas in the United States District Court for the Western District of Tennessee on
charges of: (1) unlawfully, knowingly and intentionally possessing hydrocodone, a Schedule
III controlled substance, with the intent to distribute; (2) distributing hydrocodone; and (3)
knowingly and intentionally omitting to file a mandatory report with the Drug Enforcement
Administration as required with the distribution of hydrocodone.

        On March 30, 2006, Dr. Young submitted the Will for probate. By Order of March
30, 2006, the Will was admitted to probate, and the Estate of Franklin Steadman Murdaugh
(the “Estate”) was opened. On December 6, 2006, the Decedent’s sister Barbara Murdaugh
Warner (“Appellee,” or “Contestant”) filed a complaint for will contest, alleging, in relevant
part, that “a special and confidential relationship existed between the [Decedent] and [Dr.
Young], such that the [Decedent] was especially influenced by the persuasion of [Dr.
Young].” In support of this allegation, Ms. Warner averred that Dr. Young was not only the
Decedent’s dentist, but that he was also supplying Decedent with illegally prescribed
hydrocodone. The record reveals that the Decedent and the Contestant did not have a very
good relationship. In fact, the relationship that they had was hostile, and this hostility
stemmed from disputes over their father’s estate and other family issues. On December 27,
2006, Dr. Young answered the will contest and denied the material allegations contained
therein.

        The will contest was subsequently transferred to the Chancery Court for Madison
County. After a motion to recuse was granted and a new trial judge was assigned, the matter
finally proceeded to hearing on September 15, 2010. The trial court’s order of November 18,
2010 specifically states that the parties stipulated as follows:

              The parties stipulated that the proponent of the will [i.e., Dr.
              Young] could prove that the will was validly executed. The
              parties also stipulated that the contestant of the will [i.e., Ms.
              Warner] could prove that a confidential relationship existed
              between Mr. Murdaugh and [] Rudy Young. In fact, [Dr.
              Young] requested that the Court’s focus should be on his burden
              of rebutting the presumption of undue influence.

      Following the hearing, the trial court concluded that Dr. Young had not rebutted the
presumption of undue influence, and found that the Will was, therefore, void. Dr. Young

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appeals. The sole issue for review is:

              Whether the trial court erred in finding that Dr. Young had not
              met his burden to rebut the presumption of undue influence
              arising from his confidential relationship with the Decedent?

        Before addressing the issue, we first note that our review of the trial court's findings
of fact is de novo, accompanied by a presumption of correctness, unless the preponderance
of the evidence is otherwise. See Tenn. R. App. P. 13(d). 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). Our
review of the trial court's determinations regarding questions of law is de novo with no
presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Furthermore, when the resolution
of the issues in a case depends upon the truthfulness of witnesses, the trial judge who has the
opportunity to observe the witnesses and their manner and demeanor while testifying is in
a far better position than this Court to decide those issues. See McCaleb v. Saturn Corp., 910
S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App.
1997). The weight, faith, and credit to be given to any witness' testimony lies in the first
instance with the trier of fact, and the credibility accorded will be given great weight by the
appellate court. Whitaker, 957 S.W.2d at 837; see also Walton v. Young, 950 S.W.2d 956,
959 (Tenn. 1997).

        As noted above, the parties stipulated that Dr. Young had a confidential relationship
with the Decedent. However, it is well settled that proof of a confidential relationship is not,
by itself, sufficient to make out a prima facie claim of undue influence. Kelley v. Johns, 96
S.W.3d 189, 198 (Tenn. Ct. App. 2002). Consequently, Ms. Warner must also show the
existence of other suspicious circumstances that would show that the Will was not entirely
Decedent’s free and independent act. See id. Suspicious circumstances of undue influence
often include:

              (1) the existence of a confidential relationship between the
              testator and beneficiary;
              (2) the testator's physical or mental deterioration;
              (3) the beneficiary's active involvement in procuring the will;
              (4) secrecy concerning the will's existence;
              (5) the testator's advanced age;
              (6) the lack of independent advice in preparing the will;
              (7) the testator's illiteracy or blindness;
              (8) the unjust or unnatural nature of the will's terms;

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              (9) the testator being in an emotionally distraught state;
              (10) discrepancies between the will and the testator's expressed
              intentions; and
              (11) fraud or duress directed toward the testator.

Kelley, 96 S.W.3d at 196.

       The existence of a confidential relationship, together with a transaction by which the
dominant party obtains a benefit from the other party or another suspicious circumstance,
triggers a presumption of undue influence. Roberts v. Chase, 25 Tenn. App. 636, 166 S.W.2d
641, 650–51 (1942). The record in this case clearly demonstrates not only that Dr. Young had
a confidential relationship with the Decedent, but also that the Decedent suffered from
prescription drug addiction, and that Dr. Young was the Executor and sole beneficiary under
the Will. These undisputed facts, coupled with Dr. Young’s stipulation that he had a
confidential relationship with the Decedent, are sufficient to give rise to a presumption of
undue influence. The presumption of undue influence can only be rebutted by clear and
convincing evidence of the fairness of the transaction. Richmond v. Christian, 555 S.W.2d
105, 107 (Tenn.1977). The difficulty in proving the fairness of a transaction varies depending
on the circumstances of a particular case and the strength of the presumption of undue
influence. Id. at 108. A lack of suspicious circumstances can rebut the presumption. Parish
v. Kemp, 308 S.W.3d 884, 891 (Tenn. Ct. App. 2008) (citing Simmons v. Foster, 622
S.W.2d 838, 841 (Tenn. Ct. App. 1981)). A showing that the testator had independent advice
is another way of showing the fairness of the transaction. Matter of Estate of Depriest, 733
S.W.2d 74 (Tenn. Ct. App. 1986). “A showing . . . of independent advice is ordinarily
required where it is a reasonable requirement and where it would be difficult to show the
fairness of the transaction without it.” Id. at 79. Fairness, in the context of a will contest
involving allegations of undue influence, has been explained as follows:

              It is understandable that judges and lawyers might be confused
              in this area because the appellate courts have not carefully
              defined what is meant by the fairness of the transaction. Without
              the term being carefully defined the average jury might assume
              that it was being asked to find whether the person benefitting
              from the will deserved what the will provided. That is not the
              meaning of the term. The jury should not be concerned with the
              question of whether the testator did right by those who
              ordinarily would be the objects of the testator's bounty. The
              jury's function is limited to a determination of the testator's
              capacity to make a will and whether the provisions in the will
              were arrived at through the free agency of the testator rather

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              than through the imposition of someone else's will. If the jury
              finds in favor of the will on these two questions it has found that
              the transaction was fair.

Matter of Estate of Depriest, 733 S.W.2d at 79.

        The trial court’s conclusion that Dr. Young had not met his burden of proof to rebut
the presumption of undue influence was based on the following, relevant, findings, as set
out in the November 18, 2010 order:

              [A]t the trial of this matter, which occurred on September 15,
              2010, Teddy Hazelhurst, Kevin Cox, John Byrum, David
              Simpson, and the Contestant testified as witnesses. Three (3)
              exhibits were introduced into evidence. After due consideration
              of all the evidence. . .the entire record, the parties’ stipulations
              and after considering the credibility of all witness, the Court[]
              [finds] as follows:

                                             ***

              Mr. Young had a daughter with whom Mr. Murdaugh was
              exceptionally close. According to the will Mr. Young’s
              daughter was to receive the estate if Mr. Young passed away
              before Mr. Murdaugh. Mr. Murdaugh had a history of using
              legal substances such as alcohol to excess, of using legal
              substances illegally, and using illegal substances.        Mr.
              Murdaugh also used hydrocodone both legally, he had a
              prescription, and illegally, he obtained and used hydrocodone
              for which he did not have a prescription. Mr. Murdaugh used
              hydrocodones to excess, and Mr. Young knew that Mr.
              Murdaugh had a use problem with hydrocodones. Mr. Young
              also had substance abuse problems of his own, and at times, he
              and Mr. Murdaugh would share drugs such as morphine,
              hydrocodone and dilaudid. Mr. Young was also a dentist, and
              prior to the execution of the will, Mr. Young prescribed
              hydrocodone tablets to Mr. Murdaugh. In fact, for several years
              [] between 1996 and 2002, Mr. Young prescribed hydrocodone
              tablets to Mr. Murdaugh when there was no legitimate medical
              purpose to prescribe the drug. In 2002 Mr. Murdaugh moved
              into Mr. Young’s home, and for a period of time between the

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              time Mr. Murdaugh moved into Mr. Young’s home and 2004
              Mr. Young did not write Mr. Murdaugh prescriptions for
              hydrocodone. In 2004, however, Mr. Young wrote Mr.
              Murdaugh four (4) prescriptions for hydrocodone, and when
              ask[ed] “Were those valid prescriptions for dental difficulties or
              was this more a matter of addiction?” Mr. Young testified,
              “Probably addiction.” At the time the will was executed Mr.
              Young was providing Mr. Murdaugh with a place to live and an
              automobile to drive. . . .

        We have reviewed the entire record and conclude that the foregoing findings of fact
are established by the preponderance of the evidence therein. Based upon these findings, the
trial court made the following, relevant, conclusions of law:

                      There is undoubtably reason [] to believe that Mr.
              Murdaugh executed the will because Mr. Young provided him
              with a home and automobile, or because he had affection toward
              Mr. Young’s daughter, or because he had a bad relationship with
              his sister. While these are all legitimate reasons for executing
              a will, the Court does not find or conclude that these were the
              reasons why Mr. Murdaugh executed the will. Instead, the
              Court finds and concludes that Mr. Young used his prescription
              writing privileges to induce Mr. Murdaugh, whom Mr. Young
              knew had use issues with substances such as hydrocodone, into
              executing the will that named him as beneficiary. In other
              words, Mr. Young used his prescription writing privileges to
              impose his will on Mr. Murdaugh. The Court did consider all
              the evidence submitted by the Proponent of the will, including
              the fact that an attorney did prepare the will. This evidence,
              however, simply did not eliminate the substantial doubts the
              Court had surrounding whether or not the will was arrived at
              through the free agency of Mr. Murdaugh. As stated above, the
              Court did not find that the will was arrived at through the free
              agency of Mr. Murdaugh.

                                             ***

                     The Proponent of the will has not carried his burden of
              rebutting the presumption of undue influence by clear and
              convincing evidence, and since the will was procured by undue

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              influence, the will is declared void.

        As discussed above, based upon the stipulation of the parties and the attendant
circumstances, the presumption of undue influence attached in this case. The burden then
shifted to Dr. Young, as the Proponent of the will, to rebut the presumption of undue
influence by clear and convincing evidence. The Tennessee Supreme Court has defined
"clear and convincing" evidence as more exacting than the preponderance of the evidence
standard but not requiring such certainty as beyond a reasonable doubt. Hughes v. Bd. of
Prof'l. Responsibility. of Sup. Ct. of Tenn., 259 S.W.3d 631, 641 (Tenn. 2008) (quoting
O'Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995). "Clear and convincing
evidence eliminates any serious or substantial doubt concerning the correctness of the
conclusions to be drawn from the evidence. It should produce in the fact-finder's mind a firm
belief or conviction with regard to the truth of the allegations sought to be established." O'
Daniel v. Messier, 905 S.W.2d at 188 (citations omitted).

        To rebut the presumption of undue influence, Dr. Young provided evidence showing
that: (1) Decedent had a close relationship with Dr. Young’s daughter; (2) Dr. Young
provided housing and an automobile to the Decedent; and that (3) Decedent did not have a
good relationship with his immediate family. However, these evidentiary points are
somewhat of a double-edged sword. While these facts may support Dr. Young’s contention
that it was Decedent’s love for Dr. Young’s family, and Dr. Young’s largess toward
Decedent that led to his being named as the Decedent’s sole beneficiary, these facts could
just as easily support a finding of undue influence. The fact that Decedent lived with Dr.
Young and his family, and the fact that he was estranged from his sister could lead a fact
finder to conclude that it was Decedent’s fear of losing his situation, rather than his
autonomy, that gave rise to the Will. Consequently, this evidence does little to rebut the
presumption of undue influence. Dr. Young also relies upon the fact that an attorney
prepared the Will. As noted above, a showing that the testator had independent advice is one
way of showing the fairness of the transaction Matter of Estate of Depriest, 733 S.W.2d at
79. However, the existence of independent advice may not be sufficient to rebut a
presumption of undue influence especially in a case, such as this, where the particular
circumstances strengthen the presumption of undue influence. Richmond, 555 S.W.2d at
107. It is undisputed that Decedent abused prescription drugs. Given the fact that, in addition
to providing housing and transportation to the Decedent, Dr. Young was also the primary
supplier of Decedent’s hydrocodone, we agree with the trial court that independent advice,
without more, is insufficient to clearly and convincingly rebut the presumption of undue
influence. From the totality of the circumstance, we cannot conclude that the trial court erred
when it found that this Will was not procured through the free agency of the Decedent but
rather through the imposition of Dr. Young’s influence. Matter of Estate of Depriest, 733
S.W.2d at 79.

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       For the foregoing reasons, we affirm the order of the trial court. Costs of this appeal
are assessed against the Appellant, Rudy W. Young, and his surety.




                                                   _________________________________
                                                   J. STEVEN STAFFORD, JUDGE




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