     IN THE COURT OF APPEALS OF TENNESSEE
          MIDDLE SECTION AT NASHVILLE


IN RE: ESTATE OF              )
JESSIE HANEY, Deceased        )
                              )
                                                            FILED
MABLE YOUNG, LEONA YOUNG, )                                 February 9, 1996
BEULAH YOUNG, GLENDA          )
YOUNG, and JEWEL MITCHELL,    )                            Cecil W. Crowson
                                                          Appellate Court Clerk
                              )
     Plaintiffs/Appellants,   )
                              )                 Jackson Circuit
                              )                 No. 1122
VS.                           )
                              )                 Appeal No.
                              )                 01-A-01-9509-CV-00424
ARLENE BUSH, Individually and )
Executor Under the Will of    )
JESSIE HANEY,                 )
                              )
     Defendant/Appellee.      )




                      CONCURRING OPINION

      The majority has reached the correct result in this case. I have prepared this
separate opinion for two reasons.        First, we should state clearly that the
contestants’ trial counsel should not be faulted for requesting the trial court to use
a Tennessee Pattern Jury Instruction that the Tennessee Supreme Court had
disapproved only one month before trial. Second, we should conclude without
equivocation that the record contains material evidence upon which the jury could
have determined that the beneficiary had clearly and convincingly rebutted the
presumption of undue influence arising from her confidential relationship with
Mrs. Haney.
                                         I.


        Jessie Haney executed a will on January 4, 1991, leaving her estate to a
niece. She died three years later at the age of eighty-eight. Three of her sisters
and two of her nieces challenged the will after it was admitted to probate, alleging
that the beneficiary had exerted undue influence on Mrs. Haney and that Mrs.
Haney lacked sufficient testamentary capacity to execute a will.


        The contestants proved at trial that Mrs. Haney had a confidential
relationship with the beneficiary. Accordingly, they were entitled to the benefit
of the presumption of undue influence arising from the existence of a confidential
relationship. The beneficiary put on proof to rebut this presumption, and the case
then went to the jury. The trial court’s instructions, however, contained an error
concerning the amount of proof needed to rebut the presumption of undue
influence.


        Relying on Tennessee Pattern Jury Instruction 11.60, the trial court
instructed the jury that the beneficiary could rebut the presumption by proving by
a preponderance of the evidence that the will was not the result of undue
influence. Unfortunately, the Tennessee Supreme Court had specifically rejected
this instruction approximately one month earlier in Matlock v. Simpson, 902
S.W.2d 384, 386 (Tenn. 1995). Apparently neither the trial court nor the lawyers
for the parties were aware of the Matlock v. Simpson decision when they tried this
case.


                                        II.


        The Tennessee Pattern Jury Instructions, prepared by a committee of the
Tennessee Judicial Conference, are frequently used as a source for instructions in
the trial court. State v. Rutherford, 876 S.W.2d 118, 120 (Tenn. Crim. App. 1993).
Their use is not mandatory, State v. Harris, 839 S.W.2d 54, 74 (Tenn. 1992), cert.
denied, 113 S. Ct. 1368 (1993), and notwithstanding their popularity, they do not
have the force of law and do not bear the imprimatur of the Tennessee Supreme

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Court or the General Assembly. State v. Phipps, 883 S.W.2d 138, 152 (Tenn.
Crim. App. 1994). Accordingly, the preface to the instructions points out that “no
prior approval of any instruction has been sought from the Supreme Court” and
that “[t]hese instructions are as subject to objection and reversal as instructions
have always been." Tennessee Pattern Jury Instructions - Civil, 8 Tenn. Practice
at vii (2d ed. 1988).


       The Tennessee Supreme Court has not hesitated to disapprove pattern
instructions found to be deficient. See, e.g., Matlock v. Simpson, 902 S.W.2d at
386 (criticizing T.P.I. - Civil 11.60); State v. Dyle, 899 S.W.2d 607, 612 (Tenn.
1995) (criticizing T.P.I. - Criminal 42.05). Thus, both the bench and the bar
understand that the use of a pattern instruction does not displace the trial court’s
obligation to prepare and use fair and accurate instructions, State v. Phipps, 883
S.W.2d at 152, or trial counsel’s obligation to call material misstatements or
omissions to the trial court’s attention.


       The trial of this case occurred only thirty-one days after the Tennessee
Supreme Court issued its decision in Matlock v. Simpson. The opinion was not
officially published until September 5, 1995 when it appeared in the advance
sheets.1 While the decision may have been available earlier in other unofficial
publications,2 neither the attorneys involved in the trial nor the trial court should
be faulted for failing to discover that T.P.I. - Civil 11.60 was no longer correct.
This court had repeatedly employed the standard reflected in the pattern
instruction,3 even after noting that the Tennessee Supreme Court had not approved
the instruction and that the instruction was inconsistent with earlier opinions
requiring clear and convincing evidence to rebut the presumption. Reynolds v.
Day, 792 S.W.2d 924, 928 (Tenn. Ct. App. 1990). The Tennessee Supreme Court

       1
           See West’s Tennessee Decisions, 902 S.W.2d No. 2 (September 5, 1995).
       2
        A synopsis of the opinion appeared in the February 20, 1995 edition of the Tennessee
Attorneys Memo. See 20 T.A.M. 8-1. It may also have been available on electronic databases
such as LEXIS or Westlaw.
       3
        Crain v. Brown, 823 S.W.2d 187, 193-94 (Tenn. Ct. App. 1991); Owen v. Stanley, 739
S.W.2d 782, 787 (Tenn. Ct. App. 1987); Taliaferro v. Green, 622 S.W.2d 829, 835-36 (Tenn.
Ct. App. 1981).


                                             -3-
itself declined to review these decisions,4 and thus it would not have been
unreasonable when this case was tried to believe that the principle embodied in the
instruction had taken on an aura of settled law.


                                            III.


       The contestants are in no position to use Matlock v. Simpson to challenge
the jury instructions or the trial court’s approval of the evidence as thirteenth
juror. They requested the instruction and did not take issue with its correctness
in their motion for new trial. As a consequence, they have waived their
opportunity to raise this issue, and they must accept part of the responsibility for
this error. Tenn. R. App. P. 3(e); Tenn. R. App. P. 36(a).


       The contestants, however, insist that we should review the jury’s verdict
using the clear and convincing evidence standard required by Matlock v. Simpson.
We should not compound the error in the trial court by continuing to ignore the
plain mandate of Matlock v. Simpson. Accordingly, our task on this appeal should
be to determine whether the record contains material evidence upon which the jury
could reasonably conclude that the beneficiary presented clear and convincing
evidence to rebut the presumption of undue influence that arose once the
contestants proved the existence of a confidential relationship between Mrs.
Haney and her niece.


       The clear and convincing evidence standard is more exacting than the
preponderance of the evidence standard. See Rentenbach Eng’g Co. v. General
Realty, Ltd., 707 S.W.2d 524, 527 (Tenn. Ct. App. 1985). It falls somewhere
between the preponderance of the evidence standard and the beyond a reasonable
doubt standard. Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn. Ct. App. 1992).

       4
         The Tennessee Supreme Court’s denial of an application for permission to appeal was
at one time viewed as an endorsement of the reasoning and result of an intermediate appellate
court opinion. See Pairamore v. Pairamore, 547 S.W.2d 545, 548-49 (Tenn. 1977); Beard v.
Beard, 158 Tenn. 437, 442, 14 S.W.2d 745, 747 (1929). This is apparently no longer the case
in light of the Tennessee Supreme Court’s holding that the denial of an application for
permission to appeal does not necessarily commit the Court to all the views expressed in the
intermediate appellate court’s opinion. Swift v. Kirby, 737 S.W.2d 271, 277 (Tenn. 1987).


                                            -4-
Clear and convincing evidence eliminates from the fact finder’s mind any serious
or substantial doubt concerning the correctness of the conclusions to be drawn
from the evidence, see Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3
(Tenn. 1992), and produces a firm belief or conviction with regard to the accuracy
of the conclusions. Brandon v. Wright, 838 S.W.2d at 536; Wiltcher v. Bradley,
708 S.W.2d 407, 411 (Tenn. Ct. App. 1985).


      Recapitulating the testimony serves little useful purpose at this point. The
majority’s opinion contains lengthy excerpts from the record illustrating that Mrs.
Haney received independent legal advice in the preparation of her will and that
she was aware of the significance of what she was doing when she executed the
will. Based on all the testimony, we should simply conclude that the record
contains material evidence to support the jury’s conclusion that Mrs. Haney was
capable of executing a valid will and that the beneficiary clearly and convincingly
rebutted the presumption of undue influence arising from her confidential
relationship with Mrs. Haney.




                                       __________________________________
                                       WILLIAM C. KOCH, JR., JUDGE




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