                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                  November 27, 2000 Session

   IN RE: ESTATE OF ANNIE CLARE HAMILTON, ET AL. v. WALTER
                    DEWITT MORRIS, ET AL.

                  A Direct Appeal from the Chancery Court for Dyer County
                   No. 97P111     The Honorable J. Steven Stafford, Judge



                   No. W1998-00191-COA-R3-CV - Filed February 13, 2001


Proponents of 1992 will of testatrix offered the will for probate, and three beneficiaries of testatrix’s
1987 will filed a complaint contesting the 1992 will. Proponents of the 1992 will filed a response
to the complaint contesting the 1992 will which, inter alia, denies that the 1987 will is the last will
and testament of the testatrix. The chancellor granted summary judgment against the proponents of
the 1992 will, holding that the will was void by virtue of proponents’ undue influence on testatrix.
The chancellor also granted summary judgment for residuary beneficiary of the 1987 will and
admitted the 1987 will to probate as the last will and testament of the testatrix. Appellants, the
proponents of the 1992 will and contestants of the 1987 will, have appealed.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY KIRBY LILLARD, J., joined.

Thomas H. Strawn, Dyersburg, William S. Hollis, Lexington, South Carolina, For Appellants

Wilkerson Gauldin & Hayes, Dyersburg, For Appellees, Katherine Evans and John E. Gauldin, III

Olie Phillips, Jackson, For Appellees, Olie Phillips, Virginia Lamb and Mary Sugg Baker

Conley Campbell Moss Smith, Union City, For Appellee Freed-Hardeman University

                                              OPINION

       This is a will contest case involving two wills of Annie Clare Hamilton, Testatrix.
Appellants, Walter Dewitt Morris and Jo Ann Morris Holton, brother and sister, and blood relatives
of the Testatrix, are beneficiaries under Testatrix’s 1992 will (the “1992 Will”). Appellees,
Katherine G. Evans, John E. Gauldin, III, and Freed-Hardeman University, are beneficiaries under
Testatrix’s 1987 will (the “1987 Will”)1. Appellees challenged the validity of the 1992 Will based,
inter alia, on the undue influence of Appellants. Appellants likewise challenged the validity of the
1987 Will based on the undue influence of Attorney Jimmy Evans, another beneficiary under the
1987 Will.

       From a review of the voluminous record, which reveals what can be described as a
labyrinthine procedural process, we glean the following salient facts:

       When Annie Clare Hamilton died in 1997, she left an estate valued at over $1,000,000.
During her lifetime, Ms. Hamilton executed four (4) wills, of which only the last two, the 1987 and
1992 Wills, are at issue here. The 1987 Will left a large portion of Ms. Hamilton’s estate to Attorney
Jimmy Evans, who was apparently Ms. Hamilton’s friend and advisor. Mr. Evans did not draft the
1987 Will.2

        Before Ms. Hamilton executed her 1992 Will on October 13, 1992, she partially executed
a codicil to the 1987 Will on May 30, 1992. The record indicates that Attorney John Palmer drafted
the Codicil according to Ms. Hamilton’s wishes. In his deposition, Mr. Palmer testified that after
Ms. Hamilton signed the Codicil, he asked her “if it was her intent to delete Evans and add her
relatives to her Will.” Ms. Hamilton apparently responded, “I don’t want to take Jim Evans out!”
Ms. Hamilton never fully executed the document.

        Then, on October 13, 1992, Ms. Hamilton executed a Will which left the bulk of her estate
to Appellants, while leaving Mr. Evans only $25,000 “for services rendered,” a fraction of the total
bequests to Evans in the 1987 Will. Mr. Palmer drafted the 1992 Will but had nothing to do with
its execution.3

       The trial court granted Appellees’ Motion for Summary Judgment which sought to invalidate
the 1992 Will for undue influence. The court found that a confidential relationship existed between
Ms. Hamilton and the Appellants:

                             Again, in order to begin the proper analysis of this case, since
                     undue influence is alleged, we must first ascertain whether there was
                     a confidential relationship. . . . I believe it was May of 1992, that Mr.
                     Morris and Mrs. Holton were granted an unrestricted Power of
                     Attorney along with Jimmy Mann Evans. Mr. Palmer discussed that
                     in depth in his deposition. Based upon that fact, and based upon the
                     fact that any prior wills that had been executed by Mrs. Annie Clare

         1
          W e note that the Phillips Street Church of Christ was also a bene ficiary under the 1987 w ill, but appare ntly
did not seek to share in Ms. Hamilton’s estate and is not a party to this case.

         2
             The rec ord indica tes that Attorne y Ray Ashley d rafted the 19 87 W ill.

         3
             Ms. Ham ilton was not present when M r. Palmer prepare d the 1992 W ill in his offices.

                                                               -2-
               Hamilton did not leave any gifts to Mr. Morris and Mrs. Holton, The
               Court has determined that in fact a confidential relationship did exist
               between Mr. Morris, Mrs. Holton and Annie Clare Hamilton.

The trial court found no evidence that Mrs. Hamilton received any independent legal advice
regarding the 1992 Will, and noted that the terms of that will were inconsistent with Mrs. Hamilton’s
earlier wills and with her comments at the failed execution of the Codicil. Based upon these
findings, the trial court held the 1992 Will to be a product of the undue influence of Appellants
Morris and Holton.

       Having invalidated the 1992 Will, the trial court granted Appellee Freed-Hardeman’s Motion
for Summary Judgment as to the 1987 Will, ruling that Appellants had no standing to contest the
will. The trial court then admitted the 1987 Will to probate. The court explained:

               [B]ased upon the proof presented and the recitation of the facts which
               are uncontroverted for purposes of this motion - - And that is, that
               Mr. Evans, for purposes of this motion, exerted undue influence on
               the testator - - The Court finds that this partial invalidity as to any
               gifts made to Mr. Evans or to Mr. Evans’ family would not invalidate
               the Will. Ms. Hamilton went to great lengths in this particular case
               by providing that any gift that proved to be invalid would pass to the
               residuary beneficiary. There’s been no proof in this case, . . . that
               either Freed Hardeman or the Phillips Street Church of Christ did
               anything improper, or that Jimmy Evans was their agent. . . . If you
               strike out any gifts made to Mr. Evans or his family, the Will still
               provides for the transfer of all of Ms. Hamilton’s property.

                                           *      *      *

                        So, in essence, The Court is finding that as a matter of law the
               Will, the 1987 Will of Annie Clare Hamilton, is a valid document.
               And The Court is also finding, as a matter of law, that any partial
               intestacy that may be caused by any undue influence on the part of
               Jimmy Evans in having this Will drafted would not revoke the Will
               nor would it have any effect upon any gift made to Freed Hardeman
               University or Phillips Street Church of Christ for the simple reason
               there is no connection that’s been shown, no agency, no relationship
               of any kind.

The trial court made its judgment for Freed-Hardeman and the admission of the 1987 Will to
probate, a final judgment pursuant to Tenn.R.Civ.P. 54.02. Mr. Morris and Ms. Holton appeal the
trial court’s orders granting summary judgment on the 1992 Will and the 1987 Will, as well at the
court’s order admitting the 1987 Will to probate.


                                                 -3-
       We believe the issues presented in this case are: (1) Whether the trial court erred in granting
summary judgment invalidating the 1992 Will; (2) Whether the trial court erred in admitting the
1987 Will to probate; (3) Whether the Appellants have standing to contest the 1987 Will; (4)
Whether the trial court properly found that allowing Testatrix’s attorney to testify did not violate
attorney-client privilege; and (5) Whether the trial court erred in denying Appellants’ motion for a
new trial based on newly discovered evidence.

        A motion for summary judgment should only be granted when the movant demonstrates that
there are no genuine issues of material fact and that the moving party is entitled to a judgment as a
matter of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden
of demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618,
622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate
view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.
1993), our Supreme Court stated:

       Once it is shown by the moving party that there is no genuine issue of material fact,
       the nonmoving party must then demonstrate, by affidavits or discovery materials, that
       there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05
       provides that the nonmoving party cannot simply rely upon his pleadings but must
       set forth specific facts showing that there is a genuine issue of material fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

         Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court's grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of
the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren
v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).


Attorney-Client Privilege

        Because our holding vis-a-vis the 1992 Will is dependent upon the testimony of Attorney
Palmer, we address the issue of attorney-client privilege first. Appellants assert that the trial court
erred in ordering Attorney John Palmer to testify about what they claim are “privileged facts.” They
claim that, when they communicated Ms. Hamilton’s wishes regarding the 1992 Will to Mr. Palmer,
they were acting as her agents and are entitled to assert attorney-client privilege. Appellants direct
us to the case of Swindler & Berlin v. U.S., 524 U.S. 399 (1998), in which the United States
Supreme Court held that the attorney-client privilege survives the death of the client. While we do
not dispute the holding in Swindler, we do not believe that case addresses the issues the instant case
presents.


                                                  -4-
        In Swindler, the United States Supreme Court was asked to rule on whether the Office of the
Independent Counsel, through a grand jury, could subpoena notes Attorney James Hamilton took
during his meeting with Deputy White House Counsel, Vincent W. Foster, Jr. See id. at 401. Mr.
Foster consulted Mr. Hamilton, an attorney with Swindler & Berlin, to discuss legal representation
regarding investigations into the White House Travel Office scandal. See id. In Swindler, the Court
engages in a lengthy discussion of the attorney-client privilege, and notes that the majority
jurisdictions addressing the privilege have done so in the context of testamentary law. See id. at 404.
The Court noted that most courts presume that the privilege survives the death of the client, but they
view testamentary disclosure of communications as an exception to the privilege. Id. The Swindler
Court quoted from United States v. Osborne, 561 F.2d 1334, 1340 (9th Cir. 1977):

               [T]he general rule with respect to confidential communications . . . is
               that such communications are privileged during the testator’s lifetime
               and, also, after the testator’s death unless sought to be disclosed in
               litigation between the testator’s heirs. . . .

524 U. S. at 405 (citations omitted). The Court went on to say that, “The rationale for such
disclosure is that it furthers the client’s intent.” Id.

          The parties have not cited, nor has our research revealed, a Tennessee case dealing with the
precise point before us. However, although “the privilege accorded certain communications between
. . . attorney and client, has been long and frequently upheld by the Courts of this State, it has also
been frequently recognized that there are many exceptions to this privilege.” Hazlett v. Bryant, 241
S.W.2d 121, 123 (Tenn. 1951).

        In Glover v. Patten, 165 U.S. 394 (1897), a case which has not been overruled in over one-
hundred years, the United States Supreme Court set out what we believe is the applicable rule in the
case at bar:

               . . . we are of the opinion that, in a suit between the devisees under a
               will, statements made by the deceased to counsel respecting the
               execution of the will, or other similar document, are not privileged.
               While such communications might be privileged if offered by third
               persons to establish claims against an estate, they are not within the
               reason of the rule requiring their exclusion, when the contest is
               between the heirs or next of kin.

165 U.S. at 406 (emphasis added).

       81 Am.Jur.2d Witnesses § 389 states:

               Factors affecting applicability; client’s death



                                                 -5-
                       Where the client is dead and the controversy arises concerning
               the validity of the deceased client’s will, or between the claimants
               thereunder, no privilege exists as to communications between the
               testator and his attorney concerning the drafting of a will. Thus,
               communications by a client to the attorney who drafted his will,
               concerning the will and transactions leading to its execution,
               generally are not, after the client’s death, protected as privileged
               communications in a suit between the testator’s heirs, devisees, or
               other parties who claim under him, although there is authority for the
               proposition that the privilege protecting a client’s communications to
               the attorney who drew his will may be invoked against claimants
               adverse to the interests of the client, his estate, or his successors.

        Appellants assert that this is an “inter-dispute” between heirs and/or devisees versus non-
heirs and/or non-devisees, and that, therefore, the attorney-client privilege is not waived. We must
disagree. The allowance of the exception is to help establish the intent of the testatrix or testator,
and we can see no reason for a distinction made by Appellants as to the disputes between those
designated as heirs, devisees, non-heirs, or non-devisees. The testamentary exception should be
applied to such disputes concerning all potential beneficiaries.

The 1992 Will

        Appellants next contend that the trial court erred in granting summary judgment in favor of
the Appellees on the issue of validity of the 1992 Will. We have said that “[i]nvalidating a will
because of undue influence is generally not a simple undertaking.” Mitchell v. Smith, 779 S.W.2d
384, 388 (Tenn. Ct. App. 1989). The most common way of establishing the existence of undue
influence is “by proving the existence of suspicious circumstances warranting the conclusion that
the will was not the testator’s free and independent act.” Id. Three of the most frequently relied
upon “suspicious” circumstances are: (1) a confidential relationship between the testator and the
beneficiary; (2) the testator’s poor physical or mental condition; and (3) the beneficiary’s
involvement in the procurement of the will in question. See id.

                        Other recognized suspicious circumstances include: (1)
               secrecy concerning the will's existence; (2) the testator's advanced
               age; (3) the lack of independent advice in preparing the will; (4) the
               testator's illiteracy or blindness; (5) the unjust or unnatural nature of
               the will's terms; (6) the testator being in an emotionally distraught
               state; (7) discrepancies between the will and the testator's expressed
               intentions; and (8) fraud or duress directed toward the testator.

Id.




                                                 -6-
        Under Tennessee law, as in most jurisdictions, a presumption of undue influence arises where
the dominant party in a confidential relationship receives a benefit from the other party. See
Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995); Crain v. Brown, 823 S.W.2d 187, 194
(Tenn. Ct. App. 1991). A person who is “authorized to act on behalf of another by virtue of an
unrestricted power of attorney has a confidential relationship with the person who executed the
power of attorney.” Mitchell, 779 S.W.2d at 389. Only where the dominant party can show that the
transaction was fair by clear and convincing evidence, can that party overcome the presumption of
undue influence. See id. In the case of a will contest, that evidence can be that the testator received
independent, legal advice concerning the contents of the will. See Crain, 823 S.W.2d at 194.

       The basis of the trial court’s ruling in this case is that Appellants were involved in a
confidential relationship with Ms. Hamilton and that the 1992 Will was a product of Appellants’
undue influence. We agree. The trial court found that a confidential relationship existed between
Ms. Hamilton, Mr. Morris and Ms. Holton by way of a general power of attorney, and found that no
evidence was presented to determine the fairness of the transaction. In its findings, the court said:

                  There is no evidence to show that this transaction was fair. There is
                  no evidence to show that there was any independent legal advice
                  given to Annie Claire Hamilton or that she had the opportunity for
                  any independent legal advice.

                          In fact, the evidence tends to show that the 1992 Will, if
                   anything. . . was contrary to her wishes by the statement she made
                   when she failed to execute the Codicil in June of 1992. . . .

        There was no evidence to rebut the presumption of undue influence as to the 1992 Will, let
alone clear and convincing evidence. Almost all the factors enumerated above which give rise to
the presumption of undue influence are present in this case: 1) the Appellants were involved in a
confidential relationship with the Testatrix, as her attorneys in fact; (2) the Testatrix was not in the
best of physical health; (3) Mr. Morris was involved in the procurement of the will in question4; (4)
the Testatrix was very old at the time she executed the 1992 Will; (5) there is no evidence that the
Testatrix received independent advice in preparing the1992 Will and; (6) there are discrepancies
between the 1992 Will and the Testatrix’s intentions as expressed at the failed execution of the
Codicil.



         4
           In her deposition, M argaret Smith said she believed that Ms. Hamilton executed the 1992 Will under pressure
from Mr. Morris, and testified that Mr. Morris was present at the Will’s execution and asked her to witness the 1992
Will. In Taliaferro v. Green, 622 S.W.2d 829, 837 , this Court noted that, although a presumption of undue influence
will not generally arise just bec ause a ben eficiary acts as a “m ere messen ger betwee n the testator an d the testator’s
attorney,” this rule “does n ot apply where there has been any activity directly connected with the actual execution of the
will.” The Taliaferro Court went on to note that there was evidence that the beneficiary was present at the execution
of the will in question; a fact which, when combined with the beneficiary’s close family relationship to the testator,
“could have led the jury to determine that there was undue influence.” Id.

                                                           -7-
       In their brief, Appellants point to Attorney Palmer’s deposition for the proposition that Mr.
Palmer drafted the 1992 Will out of the presence of Appellant Morris. Appellants also claim that
Mr. Palmer met with the Testatrix “multiple times privately and fully regarding her 1992 Will.” If
anything, we believe Mr. Palmer’s deposition supports the contrary proposition on both counts:

               Mr. Smith:     Did you prepare or did your office type Exhibit #3, the
                              purported Will, prior to October 13, 1992?

               Mr. Palmer:    Well, the way my note reads, I am not sure. It says, “I
                              have dictated proposed short Wills for them to discuss
                              with Mrs. Hamilton.” It uses the word plural. So, I
                              may, based on some phone conversation, I may have
                              prepared - -

                                           *     *     *

               Mr. Smith:     Who was present with Mr. Morris when he came to
                              your office to retrieve that document?

               Mr. Palmer:    I don’t have a recollection of that.

               Mr. Smith:     Do you recall your conversation with him on that
                              date?

               Mr. Palmer:    I do not.

               Mr. Smith:     Then is it my understanding that your preparation of
                              that document was based upon the direction you
                              received from Slater Hollis?

               Mr. Palmer:    No, I think I probably. I would have talked to Walter
                              [Morris]. According to my note it looks like, based
                              on some phone conversations, I probably prepared
                              more than one Will. Because they started out talking
                              about just cancelling all prior Wills.

               Mr. Smith:     That’s what I understood your notes to say.

               Mr. Palmer:    I assume I prepared more than one. I think that I
                              probably talked to Walter when he came in. He told
                              me no. He probably said, “well, this is what Mrs.
                              Hamilton wants.” Based on what he told me, I
                              probably went ahead and handed him this Will.


                                                -8-
(emphasis added). Later in his deposition, Mr. Palmer indicated that, although he drafted the 1992
Will, it was not his “style.”

               Mr. Palmer:     It’s not my style but somebody obviously had told me
                               to, you know, do something short and to the point.
                               Ordinarily, I’d put more information in there. Like I
                               would have the statutory powers and some other
                               things. And that’s not in here. I don’t know why that
                               is.

       The record establishes that Mr. Palmer later sought to withdraw from the effort to probate
the 1992 Will. In a letter from Mr. Palmer to Mr. Hollis dated March 15, 1995, Mr. Palmer wrote:

                       As I have stated to you previously, I do not feel comfortable
               in participating in an effort to probate Mrs. Hamilton’s Will of
               October 13, 1992. I am not comfortable with the appearance of the
               Will itself insofar as the signature of Mrs. Hamilton is concerned; I
               am not comfortable with statements Mrs. Lamb has made; and I feel
               certain that probate of this Will will be contested and that I will be
               called as a witness.

In his deposition, Mr. Palmer explained his discomfort with probating the 1992 Will. He said, “I
didn’t like being asked to prepare papers for a probate before somebody dies.”

         In their brief, Appellants appear to argue that the legal presumption of undue influence does
not arise where the relationship between the parties is one of “close family.” While we agree that
this statement correctly represents Tennessee law, we do not believe that the relationship between
the Testatrix and Appellants can be characterized as one of “close family.” The Tennessee cases
which address this issue mostly deal with husband-wife and parent-child relationships. See, e.g.,
Kelly v. Allen, 558 S.W.2d 845, 848 (Tenn. 1977)(parent-child relationship); Hammond v. Union
Planters National Bank, 222 S.W.2d 377, 383 (Tenn. 1949)(husband-wife relationship); Bills v.
Lindsay, 909 S.W.2d 434, 440 (Tenn. Ct. App. 1993)(parent-child relationship). One case, Solari
v. Albertine, 193 S.W.2d 111 (Tenn. Ct. App. 1945), addresses the grandparent-grandchild
relationship. However, the Solari Court goes to great lengths to explain that the grandmother had
raised her granddaughter after the granddaughter was orphaned, and that the granddaughter moved
back into her grandmother’s home following her grandmother’s stroke to care for the ailing woman.
See id. at 144-15.

       Appellants cite another case, Hollis v. Thomas, 303 S.W.2d 751 (Tenn. Ct. App. 1957), as
support for the argument that the mere existence of a power of attorney will not raise the
presumption of undue influence unless that power of attorney is utilized. While the Hollis Court
does note that the beneficiary under the challenged will “never made any use of the authority
granted,” the Court rests its decision that no presumption of undue influence arose on the fact that,


                                                 -9-
although the beneficiary was “only a foster child,” the relationship between the parties “was that of
parent and child.” Id. at 760. In the instant case, Appellants are the children of Testatrix’s cousin -
hardly the type of relationship the cases above contemplate. Given that Appellants themselves have
indicated that they only visited the Testatrix three or four times a year, there appears to be little
evidence that would render the situation in the case at bar similar to the situation in Solari.

       Even assuming, arguendo, that Appellants did have the type of close family relationship
Tennessee courts contemplate, we believe that the existence of the suspicious circumstances above
is enough to raise the presumption. As this Court noted in Taliaferro:

               Where, however, the contestant shows the existence of suspicious
               circumstances such as a confidential relationship in combination with
               the beneficiary's involvement in procuring the will, or in combination
               with impairment of the testator's mental capacity, there arises the
               presumption of fraud or undue influence. . .

622 S.W.2d at 835-36 (emphasis added). See also Mitchell, 779 S.W.2d at 389-90 (noting that, even
without evidence of the confidential relationship between beneficiary and testator, “the contestants
introduced evidence of enough other suspicious circumstances to create a jury issue.”) Even if the
Appellants held no power of attorney for the Testatrix, there is ample evidence to be found in this
record which supports the presumption of undue influence as to the 1992 Will. For these reasons,
we hold that the trial court correctly granted Appellees’ Motion for Summary Judgment based on
the unrebutted presumption of undue influence.

The 1987 Will

        Appellants next urge us to hold that the trial court incorrectly granted Appellees’ Motion for
Summary Judgment which ultimately led to the admission of 1987 Will to probate. The thrust of
Appellants’ argument is that, since the trial court found there was a presumption of undue influence
as to the bequests to Attorney Evans, the entire will should be declared invalid. Based upon our
review of the law of wills in Tennessee, we affirm the trial court’s ruling and hold that a presumption
of undue influence does not invalidate gifts to “innocent” beneficiaries under the will in question.

        Whether a trial court may invalidate only that portion of a will which is tainted by undue
influence appears to be an issue of first impression in Tennessee. There are, however, cases which
address the partial invalidity of wills under circumstances other than undue influence. For example,
in Ross v. Stiff, 338 S.W.2d 244 (Tenn. Ct. App. 1959), this Court addressed a will in which some
of the bequests were void under the Rule Against Perpetuities. The Ross Court wrote:

                     Since we hold that § 13 and § 14 of the will are void for
               remoteness, there remains then but a consideration of the
               consequences of this action. As indicated in Armstrong v. Douglass,
               89 Tenn. 219, 14 S.W. 604, 10 L.R.A. 85, the primary testamentary


                                                 -10-
               intent of a testator will not necessarily be pulled down by the
               invalidation of one or more of the provisions by which that general
               intent is manifested. This will only result when it appears that the
               invalid limitation is such an essential part of the general scheme of
               the will that the several parts of the devise are inseparable and the
               whole must be adjudged void.

Id. at 251 (emphasis added). See also Armstrong v. Douglass, 14 S.W. 604 (Tenn. 1890).

        In keeping with cases such as Ross, we believe that the correct rule regarding invalidating
a will for undue influence is clearly stated in 1 Pritchard on the Law of Wills and Administration
of Estates § 128 (5th ed. 1994):

                § 128. Fraud and undue influence do not necessarily invalidate
                whole will.

                        If the fraud or undue influence by which a will is procured
                extends to the whole will, although committed by only one of the
                several beneficiaries, or even though the person benefitted is entirely
                innocent of any participation in it, or if the provisions affected by the
                fraud be inseparable from the rest, the whole will is void. But if the
                fraud extends only to a part of the will which is of a separable
                character, the portions not so affected will be good.

Such partial invalidation is supported by the rule that “[u]ndue influence presupposes a mind of
testamentary capacity.” Parham v. Walker, 568 S.W.2d 622, 624 (Tenn. Ct. App. 1978). To totally
invalidate a will for the undue influence of one beneficiary where the evidence strongly points to the
innocence of the other beneficiaries would be inconsonant with the above rule.

       In the case at bar, we find no evidence that would justify making an exception to the rule
regarding partial invalidity. There is evidence in the record of Testatrix’s intent to leave money to
Freed-Hardeman and the other Appellees. Appellants presented no evidence that any of the
beneficiaries other than possibly Jimmy Evans exerted undue influence upon Ms. Hamilton, and the
sections in the 1987 Will relating to Jimmy Evans are clearly separable from those relating to the
other beneficiaries.

        Finally, and perhaps most importantly, we must construe the 1987 Will in light of the
statutory and common law presumption against intestacy. See, e.g., T.C.A. § 32-3-101 (1984);
Putnam v. Robertson, 205 S.W. 309, 312 (Tenn. 1918); In re Tipler, 10 S.W.3d 244, 249 (Tenn.
Ct. App. 1998); Chaille v. Warren, 635 S.W.2d 700, 702 (Tenn. Ct. App. 1982). Ms. Hamilton’s
1987 Will provides for the distribution of all of her property, and expressly provides that if a gift to
any specific beneficiary is revoked, their benefits pass under the residuary clause. To hold her 1987



                                                  -11-
Will invalid, we would clearly overlook Ms. Hamilton’s clear expression of intent not to die
intestate, as well as the law as it exists in Tennessee.

Standing

         The next issue this case presents is that of standing. We believe this issue can be resolved
by clearing up what we perceive as confusion regarding the trial court’s use of the term, “standing.”
Subsequent to its ruling that there was undue influence as to gifts in the 1987 Will to Jimmy Evans,
the trial court found:

               . . . The Court is finding that as a matter of law the Will, the 1987
               Will of Annie Clare Hamilton, is a valid document. And The Court
               is also finding, as a matter of law, that any partial intestacy that may
               be caused by any undue influence on the part of Jimmy Evans in
               having this Will drafted would not revoke the Will nor would it have
               any effect upon any gift made to Freed Hardeman University or
               Phillips Street Church of Christ for the simple reason there is no
               connection that’s been shown, no agency, no relationship of any kind.
                        As I stated earlier, there have been no allegations made that
               Ms. Hamilton lacked capacity, that this Will was procured by fraud,
               or that there were any other problems with the Will or it’s [sic]
               execution. The only assertion that has been made is the undue
               influence on behalf of Mr. Evans, and The Court finds that that does
               not rise to a level sufficient to invalidate the 1987 Will.
                        The Court’s going to grant your Motion for Summary
               Judgment as to the standing issue which would be dispositive of this
               case.

(emphasis added).

        The trial court found, as a matter of law, that any undue influence of Jimmy Evans did not
invalidate the 1987 Will. The 1987 Will, as noted above, made provision for invalidated gifts.
Because of the way the 1987 Will was drafted, the only means by which the Appellants could share
in Ms. Hamilton’s estate was if the trial court invalidated the entire 1987 Will. Since Appellants
failed to persuade the trial court that, as a matter of law, Evans exerted undue influence that
invalidated the entire 1987 Will, the court, given its ruling on the legal question, found that
Appellants had no basis, or “standing,” to further contest the Will. Since the trial court found that
any undue influence on the part of Evans would have no effect on the residuary clause, the court
correctly ruled that this totally eliminated Appellants as beneficiaries of Ms. Hamilton’s estate and,
thus, they lacked “standing” to recover.

New Evidence



                                                -12-
       Finally, we affirm the trial court’s denial of Appellants’ Motion for a New Trial. That motion
was based upon alleged new evidence regarding the execution of the 1987 Will. However, in
reviewing the record in this case, we do not believe that Appellants’ evidence regarding the
execution of the 1987 Will can be considered “new.”

        Tennessee law provides for a new trial based on newly discovered evidence only under very
limited circumstances. That rule, as stated in Crain v. Brown, 823 S.W.2d 187 (Tenn. Ct. App.
1991), is:

                       Generally, in order for a party to obtain a new trial based on
               newly discovered evidence, it must be shown that the evidence was
               discovered after the trial, that it could not have been discovered
               earlier with due diligence, that it is material and not merely
               cumulative or impeaching, and that the evidence will probably change
               the result if a new trial is granted. 20 Tennessee Jurisprudence, New
               Trials §§ 6, 7, 8, 9 and 10.

Id. at 192.

         Appellants’ evidence clearly does not satisfy the due diligence requirement. The evidence
at issue here, namely the 1987 Will itself, was admitted into evidence and is a part of the record in
this case. Appellants had ample time to discover the alleged problem with the Will’s execution and
point it out to the trial court long before the close of the trial in this matter.

        Accordingly, the judgment of the trial court is affirmed, and the case is remanded for such
further proceedings as may be necessary. Costs of the appeal are assessed to Appellants, Walter
Dewitt Morris and Jo Ann Morris Holton and their surety.



                                              __________________________________________
                                              W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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