                IN THE COURT OF APPEALS OF TENNESSEE
                                                                           FILED
                                 AT KNOXVILLE                             April 15, 1999

                                                                        Cecil Crowson, Jr.
                                                                        Appellate C ourt
                                                                            Clerk

BETTY JEAN STREET,          ) C/A NO. 03A01-9710-CV-00488
                            )
      Plaintiff-A ppellant, ) WASH INGTO N CIRC UIT
                            )
v.                          ) HON . THO MA S J. SE ELE Y, JR.,
                            ) JUDGE
ROBERT L. WADDELL, GARY     )
WALTERS, TRUSTEES OF SALEM  )
PRE SBY TER IAN C HUR CH,   )
TRUSTEES OF SALEM           )
PRESBYTERIAN CEMETERY FUND, )
RANDY HURST and RUTH        )
TRIVETTE BRAY,              ) AFFIRMED
                            ) AND
      Defendants-Appellees. ) REMANDED




BOB McD . GREE N, Johns on City, for Pla intiff-App ellant.

M. STAN LEY GIV ENS and JAC K R. CAR RIER, Johnson City, for Defendants-
Appellees.




                                    O P I N IO N


                                                        Franks, J.




             In this will contest case, the Trial Judge upheld a will without a jury, and

the contestant has appealed.

              Edith Trivette, executed three separate wills over a period of

approximately three years. The last will was executed on August 31, 1994, and

devised $1,000.00 to the Salem Presbyterian Church in Washington County and a

diamond engagement ring to her stepdaughter, Ruth Trivette Bray. It then divided the

remainder of the estate equally between Robert L. Waddell, Betty Jean Street, and the

Salem Presbyterian Church Cemetery Fund. Robert L. Waddell, as Executor, caused
the will to be probated, and ultimately distributed the estate in accordance with the

will. Some five months after distribution of the estate, Betty Jean Street, who had

received $46,762.27 from the estate, filed a petition to contest the will, and upon an

extend ed trial, th e Trial C ourt rule d again st the co ntestan t.

                At trial, the con testant offered the depos ition of Dr. R alph Lee Mills in

evidence to the effect that Trivette suffered from senile dementia. The doctor testified

that he had treated Trivette from 1988 through 1992, and that “slowly over the course

of time when I began treating her, she slowly developed progressively worse

dementia.” Dr. Mills did not see Trivette in 1993 or 1994, although he expected that

her m ental an d emo tional co ndition would have d eteriora ted dur ing that t ime.

                The contestant, on appeal, insists that the burden of proof of

testamentary capacity shifted from the contestant to the proponent of the will upon

proof of a se rious perm anent m ental impa irment.

                In this regard, the Tennessee Supreme Court has said: “While evidence

regarding factors such as physical weakness or disease, old age, blunt perception or

failing mind and memory is admissible on the issue of testamentary capacity, it is not

conclusive and the testa tor is not thereb y rendered incomp etent if her m ind is

sufficiently sound to enable her to know and understand what she is doing.” In re

Estate of Elam, 738 S.W.2d 1 69, 171-2 (Tenn . 1987) (citing Am erican Tru st &

Bank ing Co . v. Willia ms, 32 Tenn . App. 590 , 225 S.W .2d 79, 83 (1 948) (em phasis

supplie d.)

                This Court, in the Amer ican Tr ust & B anking Co. case observed:

                Evidence of prior mental condition may have much, little or no
                probative value depending upon the nature and effect of the malady,
                whether general, habitual, continuous, chronic or progressive or due
                merely to temporary, superficial, accidental, occasional or intermittent
                causes or conditions. If the debility falls within the first category,
                evidence of the testator’s condition at a time other that the date of the
                execution of the will may shift the burden of proof and require the
                production of affirmativ e proof of h is condition a t the very tim e the will
                was executed.

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225 S .W.2d at 84.

               In this re gard, Green v. Higdon, 870 S.W.2d 513 (Tenn. A pp. 1993),

considered the imp act of the deposition of a D r. Kaplan offered by th e contestant of a

will. Th e docto r testified “His n iece tells m e he’s b een co nfused for mo re than a year.

On examination he was obviously disoriented. He obviously has an organic mental

state. In view of the history , it’s likely that he h as senile dem entia. I don’t th ink he is

capable of looking after his own affairs as long as this present mental state detention

continues. . . M y conclus ion is that he m ust have h ad this prim ary dem entia

Alzheim er’s Diseas e for som e years. Th e exact nu mber of y ears, I couldn ’t be certain

of. Based o n my ob servations o f him since 1982, I con clude that h is inability to

handle his business affairs date back at least a year.” Id. at 522.

               Upon considering Dr. Kaplan’s testimony, this Court said “No

testimony is found that, on January 18, 1985 , the deceased lacked testam entary

capacity. No eviden ce is found of any sp eech or action of dece ased from w hich a jury

could properly find such lack of capacity.” Id. The Court then noted, “Less mental

capac ity is requ ired to m ake a w ill than to carry o n busin ess trans actions genera lly,”

and then stated, “it is clear that the testimony of Dr. Kaplan, quoted above, is not

sufficient to justify a finding as a matter of la w that the d eceased w as incom petent to

make a will at a ny tim e.

               We conclude that the contestant’s evidence did not shift the burden of

proof of testamentary capacity, but in any event, the proponent put forth sufficient

evidence of testamentary capacity at the time of the execution of the will to rebut any

presum ption o f incapa city that c ould ha ve arise n.

               The contestant further argues that she offered proof of physical

impairment of Trivette’s vision and hearing, and that the proponents failed to show by

a preponderance of the evidence that Trivette was familiar with the precise provisions

of the w ill at the tim e of exe cution.

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               Where the maker of the will is aged, sick and infirm or unable to read

and write by reason of blindness or illiteracy, the proponent of the will is onerated

with the burden of showing the testator comprehended the contents of the will at the

time of execu tion. Burrow s v. Lewis, 24 Tenn. App. 253, 142 S.W.2d 758, 763

(1940). We agree with the contestant that the proponent had the burden of proving

that Trivette knew the contents of the will. We conclude that this burden was met by a

preponderance of the evidence. T.R.A .P. Rule 13(d).

               Gene G aby, the attorney w ho prepa red the w ill, testified that he m et with

Trivette on June 13, 1 994 and she expre ssly informed him then o f what sh e wanted in

her will. He was satisfied that Ms. Trivette knew what property she had and the

disposition she wanted to make of it, and he prepared the will accordingly. When

Gaby met with Trivette for execution of the will on June 24, 1994, he reviewed the

will with her, although he could not remember whether he read it to her, whether

someone else read it, or whether Ms. Trivette read it. He was certain that one of the

three too k place .

               Gaby then went back to the nursing home on August 31, 1994, and went

over the last will with Ms. Trivette, to the extent that he considered she knew what she

was signin g. A M s. Gamm on was p resent wh en this final w ill, upheld by the C ourt,

was ex ecuted , and sh e reme mbers Trivette discuss ing the w ill with h er attorn ey.

Although Gammon could not remember whether the entire will was read aloud, she

testified that at least part of it was read, and Trivette told Gaby she understood what

she w as doin g in the w ill.

               The contestant argues that Trivette could not have known the provisions

in this latter will, because contestant contends that this will essentially resurrected the

provisions contained in her “first will”. There is simply no proof in the record that

Trivette was attempting to resurrect the provisions from the first will. The evidence



                                              4
establishes by a preponderance that Trivette was familiar with the specific provisions

in both the seco nd and third w ills whic h she ex ecuted in June and A ugust o f 1994 .

The issue thus beco mes whether the evidence prepon derates against the Trial Cou rt’s

finding the will valid.

               The Trial Court held that the will dated August 31, 1994, was the last

will and testa ment of E dith Trivette. T he standard of review in a case tried without a

jury is de novo upon the record of the Trial Court, accompanied by a presumption of

correct ness of the find ing, unl ess the p repond erance of the e videnc e is othe rwise.

T.R.A .P. Rule 13(d).

               The con testant offe red eviden ce that Trive tte had been diagnose d with

senile dementia in 1991, and that such condition worsens with time. She introduced

several hospital and nursing home documents indicating that Trivette was confused

and disoriented at times. She a lso offered evidenc e of Trivette’s unusual b ehavior,

and to being confused as to whom people were and forgetful. She offered evidence

that Trivette h ad good days and ba d days, but did s he not off er any eviden ce as to

Trivette’s ca pacity on the sp ecific day of th e execution of the will.

               The proponent, on the other hand, offered evidence from five

disinterested persons, that Trivette had the requisite capacity to make a valid will. The

attorney Gaby testified that Trivette informed him of what she wanted in the will. She

knew what property she had and how she w anted it divided. Other witnesses,

including sta ff mem bers at the nu rsing hom e, testified to the ir opinions th at Trivette

possessed the requisite c apacity to mak e a will.

               The propone nts presented docum entary evidence that Trivette wa s alert

and oriented as to time and place, and a psychologist did find that Trivette would get

confused at times, but she would correct herself when that happened. The records

reveal that Trivette scored below the range for dementia on a test given by the


                                               5
psychologist. The evidence preponderates that Trivette was competent to make the

will upheld by the Trial Judge.

              Further, the Trial Court correctly found that there was no evidence of

undue influence upon Trivette. The contestant offered no proof of a confidential

relationship between Trivette and anyone. Nor was evidence offered of any

suspicious circumstances warranting the conclusion the will was not Trivette’s free

and ind epend ent act.

              The evid ence prep onderates in favor of th e Trial Co urt’s judgm ent,

which we affirm, and remand the cause with cost of the appeal assessed to the

appellant.




                                           __________________________
                                           Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
Charles D. Susano, Jr., J.




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