                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  February 7, 2003 Session

                  IN RE: THE ESTATE OF SPENCER BROWN

                     Appeal from the Circuit Court for Dickson County
                     No. CV1290       Allen W. Wallace, Circuit Judge


                             _______________________________

                     No. M2002-00141-COA-R3-CV - Filed July 24, 2003
                           _______________________________

This is a lawsuit filed by Don M. Brown (“Mr. Brown” or “the Appellant”) against Allene
Dunnagan (“Ms. Dunnagan” or “the Appellee”) to set aside Spencer Brown’s Last Will and
Testament dated February 11, 2000. Mr. Spencer Brown died on February 21, 2000. Mr. Brown
alleged that Ms. Dunnagan had used undue influence to get Spencer Brown to change his 1994
will. The Dickson County Circuit Court granted the Appellee’s Motion for Directed Verdict and
dismissed the Appellant’s complaint. The Appellant appealed this decision. We reverse the
decision of the trial court and remand for further proceedings.

       Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
               Cause Remanded to the Circuit Court for Dickson County

W. FRANK BROWN , III, Sp. J., delivered the opinion of the court, in which BEN H. CANTRELL ,
P.J., M.S., and WILLIAM B. CAIN , J., joined.

Connie Reguli, Nashville, Tennessee, for the Appellant Don M. Brown

Ernest W. Williams and Anna E. Freeman, Franklin, Tennessee, for the Appellee Allene
Dunnagan


                                           OPINION

                                   I. THE LEGAL ISSUES

        There are two basic issues in this appeal. The first involves the interpretation of Rule 24
of the Tennessee Rules of Appellate Procedure. The Appellant provided an abridged transcript
in support of his position that the case should have been decided by the jury. The Appellee did
not supplement the record but claimed that the Appellant failed to meet his duty to file a
complete record. Second, the Appellant contends that the trial court erred by directing a verdict
for the Defendant instead of submitting the issue of undue influence to the jury.


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                               II. STANDARD OF REVIEW

       Appellate review of non-jury cases is de novo upon the record, accompanied by a
presumption of correctness, unless the evidence preponderates against the trial court’s factual
findings. See Tenn. R.App. P. 13(d). Conclusions of law, however, are reviewed under a pure
de novo standard, according no deference to the conclusions of law made by the lower courts.
See Bank/First Citizens Bank v. Citizens & Assocs., 82 S.W.3d 259, 262 (Tenn. 2002).

                               III. FACTUAL DISCUSSION

       Mr. Spencer Brown was born on December 12, 1906. He was a widower and had no
children. He lived on a farm in Dickson County, Tennessee for most of his life. Spencer Brown
had inherited one hundred ninety-three (193) acres from his mother. Spencer Brown and his
brother, Ezell Brown, owned an adjoining seventy (70) acres as tenants in common. Ezell
Brown died intestate in 1955. Ezell Brown was survived by five (5) children.

      Two of Ezell’s five (5) children were Don Brown and Alton Brown. From 1965 forward
Mr. Don Brown had helped his uncle, Spencer Brown, with farm chores. In 1987 Spencer
Brown devised a plan whereby Don and Alton Brown could purchase his farm for $60,000.00.
This money would be divided among the remaining heirs of Ezell Brown. On July 1, 1994
Spencer Brown executed a will that carried out those intentions.

        The will was actually signed by Spencer Brown after he had a heart attack earlier in
1994. As a result of his condition, Spencer Brown was not able to return to his home on the
farm. Instead he went to live with his sister, Ms. Dunnagan. During the period 1994 until his
death on February 21, 2000, Spencer Brown’s health deteriorated. Even though she had no
formal power of attorney, Ms. Dunnagan over time wrote his checks and handled all of his
financial affairs. Spencer Brown paid his sister $300.00 per month and gave her $5,000.00 to
purchase a car. She also obtained $30,000.00 from certificates of deposit that had been created
in the names of Spencer Brown or Allene Dunnagan during the time Spencer Brown lived with
his sister. These monies came from Spencer Brown’s funds.

        Spencer Brown became ill on December 2, 1999. His condition became progressively
worse until his death on February 21, 2000. Mrs. Dunnagan handled many of her brother’s
affairs during this period. Spencer Brown had around-the-clock sitters with him after he
returned to his sister’s house from the hospital. Hospice began providing care for Spencer
Brown.

        There were expressions by Spencer Brown and Ms. Dunnagan about the last will and
testament of Spencer Brown. On some occasions Spencer Brown, and on some occasions both
of them, mentioned a need to change the will. On February 9, 2000 attorney Jerry Smith came to
see Spencer Brown at the request of Ms. Dunnagan. Spencer Brown made a number of
statements about his nephews, Don and Alton Brown, and their intentions for the farm. On that
same day Spencer Brown told Mr. Smith that he wanted to leave his share of the property he had
owned with Ezell Brown to Ezell’s five children. He wanted some time to think about other
issues.


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       On February 10, 2000 Spencer Brown was visited for a second time by Attorney Smith.
Spencer Brown had decided to leave 50% of his estate, including his farm, to Ms. Dunnagan.
Seven nieces and nephews would get the remainder of the estate. On February 11, 2000 Mr.
Smith brought the will to Spencer Brown to sign. Spencer Brown requested a change. Mr.
Smith returned to his office to make the change. Upon Mr. Smith’s return to Ms. Dunnagan’s
house, Spencer Brown signed the new will. This new will was kept a secret from the other
family members until after Spencer Brown’s death.

        Don Brown filed a Complaint contesting the validity of the February 11, 2000 will on the
basis of undue influence by Ms. Dunnagan. Although Don Brown initially filed also on his
uncle’s lack of testamentary capacity, this claim was dismissed by Don Brown shortly before
trial. The case went to trial on November 19, 2000 before a jury. The trial court denied the
Appellee’s Motion for a Directed Verdict at the end of the Appellant’s proof. However, at the
end of the Appellee’s proof, the trial court granted the Appellee’s renewed or second Motion for
Directed Verdict. This appeal followed.

                                   IV. LEGAL ANALYSIS

A. The Record Issue.

        On appeal the Appellant presented a partial record. The Appellee has requested that this
appeal be dismissed and the trial court affirmed because Mr. Brown did not file a complete
record. The Tennessee Supreme Court set out an appellate court’s role when reviewing a trial
court’s decision regarding a motion for directed verdict as follows:

                       In reviewing a trial court's action on a motion for a
                 directed verdict, it is an appellate court's duty to look at all
                 the evidence, take the strongest legitimate view of the
                 evidence in favor of the opponent of the motion, allow all
                 reasonable inferences to that party, discard all countervailing
                 evidence and deny the motion where there is any doubt as to
                 the conclusions to be drawn from the whole evidence.

Goode v. Tamko Asphalt Products, Inc., 783 S.W.2d 184, 187 (Tenn. 1989)(citing Crosslin v.
Alsup, 594 S.W.2d 379, 380 (Tenn. 1980).

       We begin the analysis by examining T.R.A.P. 24 and the cases citing the general rule.
Rule 24(a) describes what is, or should be, the record on appeal and what is not. The last
paragraph of Rule 24(a) provides as follows:

              If less than the full record on appeal as defined in this subdivision
              is deemed sufficient to convey a fair, accurate and complete
              account of what transpired with respect to those issues that are the
              bases of appeal or if a party wishes to include any papers
              specifically excluded in this subdivision, the party shall, within 15
              days after filing the notice of appeal, file with the clerk of the trial
              court and serve on the appellee a description of the parts of the

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              record the appellant intends to include on appeal, accompanied by
              a short and plain declaration of the issues the appellant intends to
              present on appeal. If the appellee deems any other parts of the
              record to be necessary, the appellee shall, within 15 days after
              service of the description and declaration, file with the clerk of the
              trial court and serve on the appellant a designation of additional
              parts to be included. All parts of the record described or designated
              by the parties shall be included by the clerk of the trial court as the
              record on appeal. The declaration and description of the parts of
              the record to be included on appeal provided in this subdivision
              may be filed and served with the declaration and description of the
              parts of the transcript to be included in the record provided in
              subdivision (b) of this rule. If a party wishes to include any papers
              specifically excluded in this subdivision, but fails to timely
              designate such items, the trial court clerk may supplement the
              record as provided for in subdivision (e) without modifying the
              previously prepared record.

       T.R.A.P. 24(b) relates to the transcript of the proceedings. It is very similar to 24(a).
Rule 24(b) provides in relevant part:

              Transcript of Stenographic or Other Substantially Verbatim
              Recording of Evidence or Proceedings. – If a stenographic report
              or other contemporaneously recorded, substantially verbatim
              recital of the evidence or proceedings is available, the appellant
              shall have prepared a transcript of such part of the evidence or
              proceedings as is necessary to convey a fair, accurate and complete
              account of what transpired with respect to those issues that are the
              bases of appeal. Unless the entire transcript is to be included, the
              appellant shall, within 15 days after filing the notice of appeal, file
              with the clerk of the trial court and serve on the appellee a
              description of the parts of the transcript the appellant intends to
              include in the record, accompanied by a short and plain declaration
              of the issues the appellant intends to present on appeal. If the
              appellee deems a transcript of other parts of the proceedings to be
              necessary, the appellee shall, within 15 days after service of the
              description and declaration, file with the clerk of the trial court and
              serve on the appellant a designation of additional parts to be
              included. The appellant shall either have the additional parts
              prepared at the appellant's own expense or apply to the trial court
              for an order requiring the appellee to do so. The transcript,
              certified by the appellant, appellant's counsel, or the reporter as an
              accurate account of the proceedings, shall be filed with the clerk of
              the trial court within 90 days after filing the notice of appeal.

      The record in this case includes the Technical Record, which is identified as Volume I.
The Notice of Appeal [p.28] and Appeal Bond [p.29] were filed with the trial court on January

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14, 2002. On January 25, 2002 the Appellant filed with the Trial Clerk his “Notice of
Submission of Partial Record.” The Appellant listed seven (7) items, including the Notice, that
were to be a part of the Technical Record. The Appellant also listed that he would submit the
transcript of the testimony of eleven (11) named witnesses, all trial exhibits, the “Judge’s
discourse with attorney’s [sic] regarding requests for jury instructions,” “Motion for Directed
Verdict at the close of plaintiff’s proof and at the close of defendant’s proof,” and the judge’s
ruling.

       The record in this case does not indicate that the Appellee requested that (a) any
additional documents be added to the technical record or (b) the transcript of any other evidence
or proceedings be typed or filed as part of the record. Indeed at oral argument counsel for the
Appellee argued that the appeal should be dismissed because the Appellant had not filed the
complete record.

       The issue was stated clearly in State v. Banes, 874 S.W.2d 73 (Tenn.Crim.App.1993),
perm. app. denied (Tenn. 1994):

               It is the appellant's obligation to have prepared an adequate record
               in order to allow meaningful review on appeal. Tenn.R.App.P.
               24(b); State v. Bunch, 646 S.W.2d 158, 160 (Tenn.1983); State v.
               Roberts, 755 S.W.2d 833, 836 (Tenn.Crim.App.), perm. to appeal
               denied, (Tenn.1988). An appellate court cannot consider an issue
               which is not preserved in the record for review. Id.

Banes, 874 S.W.2d at 82.

       An analysis of the cases shows that the general rule is used where there is no record to
consider the issue presented. Usually, there is no transcript. Sometimes, part or all of the
technical record has not even been filed. Such is not the case presented here. We have an
abridged record.

         The Rule does not require that everything or every word of a transcript become part of
the record. If such were the law, the drafters would have merely provided such. Instead, the
Rule provides that the appellant must designate those portions of the record, including the
transcript, that is necessary to consider and decide the issues raised on appeal by the appellant.
The Appellant has done so in this cause. The Rule goes further and provides that the appellee
can add to the record if he/she is of the opinion that the record is insufficient. The Appellee did
not pursue such in this case. Thus, we must look at the record before us and determine if the
partial record is sufficient for us to rule on the issues presented by the Appellant on appeal.

       The question becomes what issues does the Appellant raise and is the record submitted
by the Appellant sufficient or adequate for the appellate court to make a decision on the issues
presented. As required by T.R.A.P. Rule 24, the Appellant set forth two issues in his “Notice of
Submission of Partial Record.” Those issues are:

               1. Whether the trial court erred in not allowing the plaintiff to
               implead other beneficiaries as parties.

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               2. Whether the trial court erred in directing a verdict against the
               plaintiff.

         The Technical Record includes as number 3 the Plaintiff’s Motion to Implead Parties and
Amend the Petition. Item 4 is the trial court’s order denying the Motion. Thus, it would appear
that the record is sufficient to decide the first issue. The Record indicates that Mr. Brown filed
the Motion to Amend on October 12, 2001 and argued that Motion along with a Motion to
Continue. The Order denying these Motions was filed on November 14, 2001. It appears that
the trial court wanted to try the case on November 19, 2001 as scheduled.

       With regard to the second issue, the Appellant has produced the testimony of eleven (11)
witnesses. The Appellee did not seek to supplement the record to add additional transcript
material. Counsel for the defendant/Appellee just cites the general rule to support his argument.
Other than the deposition of Jerry Smith, mentioned at oral argument, counsel does not tell us
what evidence was not included in the record and how this omitted material was the death knell
of Appellant’s case. Without seeking to supplement the record or informing the court what the
omitted material is, we can only assume the record on appeal is sufficient to address the second
issue.

        For the reasons stated above, we find that the record as presented on appeal is sufficient
for us to review the trial court’s decision.

B. The Burden of Proof Issue.

       A will contest can be a very complicated cause to try. A summary of the law is helpful.

                   In a will contest, the proponents of a will have the initial burden
               of proving that the will was executed in compliance with all legal
               formalities. Proof of due execution makes out a prima facie case
               for the will's validity because it gives rise to the presumption that
               the testator was capable of making a will. Thus, proof of due
               execution shifts the burden to the contestants to prove that the
               testator was unduly influenced in making his or her will.

                   . . . Accordingly, in most cases, those challenging the validity
               of a will on the ground that it was procured by undue influence
               must prove the existence of suspicious circumstances warranting
               the conclusion that the person allegedly influenced did not act
               freely and independently. . . .

                   . . .The suspicious circumstances most frequently relied upon to
               establish undue influence are: (1) the existence of a confidential
               relationship between the testator and the beneficiary, (2) the
               testator’s physical or mental deterioration, and (3) the
               beneficiary’s active involvement in procuring the will. Other
               circumstances include:        (1) secrecy concerning the will’s
               existence, (2) the unjust or unnatural nature of the will’s terms, (3)

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             discrepancies between the will and the testator’s expressed
             intentions, and (4) fraud or duress directed toward the testator.

                  Proof of the existence of a confidential relationship, by itself,
             will not be sufficient to invalidate a will. It is not the relationship
             that concerns the courts but rather the abuse of the relationship.
             Proof of the existence of a confidential relationship must be
             coupled with evidence of one or more other suspicious
             circumstances that give rise to a presumption of undue influence.
             Accordingly, proof that a beneficiary had a confidential
             relationship, such as an unrestricted power of attorney, coupled
             with evidence of a transaction or gift to the beneficiary creates a
             presumption of undue influence.

                 Once a contestant presents sufficient evidence to substantiate its
              undue influence claim, the burden of going forward shifts back to
              the will’s proponent to prove by clear and convincing evidence
              that the challenged transaction or gift was fair. . . . Frequently, a
              will’s proponents prove the fairness of a transaction by presenting
              evidence that the testator received independent advice. However,
              proof of independent advice becomes necessary only when it
              would be difficult to show the fairness of the transaction or the
              competency of the testator without it.

In re Estate of Maddox, 60 S.W.3d 84, 88-89 (Tenn. Ct. App.)(citations omitted), perm. app.
denied (2001).

       The same background was given by Judge Koch in Mitchell v. Smith, 779 S.W.2d 384,
388 (Tenn.Ct.App.), perm. app. denied (1989):

                 Invalidating a will because of undue influence is generally not a
              simple undertaking. While undue influence can be proved either by
              direct or by circumstantial evidence, In re Depriest's Estate, 733
              S.W.2d 74, 78 (Tenn.Ct.App.1986) (direct evidence); Patton v.
              Allison, 26 Tenn. (7 Humph.) 320, 333 (1846) (circumstantial
              evidence), direct evidence is rarely available. Hager v. Hager, 17
              Tenn.App. 143, 161, 66 S.W.2d 250, 260 (1933). Thus, in most
              cases, the contestants establish undue influence by proving the
              existence of suspicious circumstances warranting the conclusion
              that the will was not the testator's free and independent act.
              Taliaferro v. Green, 622 S.W.2d 829, 835-36 (Tenn.Ct.App.1981).

       Judge Koch went on to point out some of these “suspicious circumstances” which can be
considered as evidence of undue influence. He said:

                   The suspicious circumstances most frequently relied upon to
              establish undue influence are: (1) the existence of a confidential

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              relationship between the testator and the beneficiary; (2) the
              testator's physical or mental deterioration; (3) the beneficiary's
              active involvement in procuring the will. See In re Elam's Estate,
              738 S.W.2d 169, 173 (Tenn.1987); Kelly v. Allen, 558 S.W.2d 845,
              848 (Tenn.1977); Taliaferro v. Green, 622 S.W.2d at 835-36.
                  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. See Halle v. Summerfield, 199 Tenn. at 454-
              57, 287 S.W.2d at 61-62; American Trust & Banking Co. v.
              Williams, 32 Tenn.App. 592, 606-07, 225 S.W.2d 79, 85 (1948);
              see also 1 Pritchard on the Law of Wills and Administration of
              Estates § 145 (4th ed. 1983); 25 Tenn.Jur. Wills § 24 (1985);
              Tennessee Pattern Instructions--Civil § 11.59.

Id.

        In this case the Appellant dropped his challenge to the testamentary capacity of Spencer
Brown to execute a new will. Therefore, the will was presumed valid and Mr. Brown had to
prove “suspicious circumstances warranting the conclusion that the person allegedly influenced
did not act freely and independently. . . .” Estate of Maddox, 60 S.W.3d at 88.

        It is the Appellant’s position that he proved sufficient suspicious circumstances that it
was necessary to submit this case to the jury. We agree. First, under the facts of this case, it
appears that the defendant/Appellee had a confidential relationship with her brother, the
decedent. A similar case to this one is Smith v. Smith, 102 S.W.3d 648 (Tenn. Ct. App. 2002),
perm. app. denied (2003). In Smith, the Court of Appeals, Eastern Section, overruled the trial
court and found a confidential relationship to have existed where a person performed services as
an attorney in fact even though the power of attorney was not legally effective. Second, the
record before us contains much evidence of Spencer Brown’s physical deterioration. Third,
there is evidence that could lead a jury to conclude that Ms. Dunnagan was active in the
procurement of Spencer Brown’s “last” will. Fourth, there was secrecy regarding the new will.
Fifth, some of Spencer Brown’s statements about Don Brown do not appear to be based in fact.
Where did the decedent get his “misinformation about Don Brown?” Sixth, the terms of the will
changed so as to benefit Ms. Dunnagan and adversely affected the Appellant and his brother
regarding the farmland. The terms of the new will certainly changed Spencer Brown’s long-
standing position regarding the disposition of the farm. On the other hand, it would be natural
that Spencer Brown would want to assist the one [Ms. Dunnagan] who had taken care of him
during his last years. This aspect makes it necessary for the jury to consider the certificates of
deposits and other assets Ms. Dunnagan received as a result of her brother’s gifts and death.

       As Judge Koch said recently in Kelley v. Johns, 96 S.W.3d 189 (Tenn. Ct. App.), perm.
app. denied (2002).

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              We need only consider here the challenge to the evidentiary
              foundation of the jury's verdict because the outcome of that issue
              necessarily dictates the fate of the estate's directed verdict claim.
              Directed verdicts cannot be granted unless the evidence permits
              reasonable minds to reach but one conclusion. Childress v. Currie,
              74 S.W.3d 324, 328 (Tenn. 2002); Conatser v. Clarksville Coca-
              Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn.1995); Eaton v.
              McLain, 891 S.W.2d 587, 590 (Tenn.1994). If there is material
              evidence to support a jury's verdict, then, of necessity, granting a
              directed verdict for the losing party would have been improper
              because the evidence permitted reasonable minds to reach more
              than one conclusion. Alexander v. Armentrout, 24 S.W.3d 267, 271
              (Tenn.2000).

Kelley, 96 S.W.3d at 194.

        Under the circumstances of the eleven (11) witnesses presented in the record and the
failure of the Appellee to show otherwise, we agree with the Appellant that the trial judge erred
in directing a verdict for Ms. Dunnagan. On this record we hold that there was more than one
possible conclusion that could be reached under the facts presented in the record before us. Will
contest cases are so factually specific that they are often uniquely qualified for a jury’s
determination. Therefore, the case should have been submitted to the jury for decision.




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                                      IV. CONCLUSION

        We reverse the trial court’s directing a verdict for the defendant. We remand the case for
a new trial. The trial court shall consider, if presented again, the Appellant’s Motion to Amend
and to Implead additional interested parties in accordance with applicable law.




                                             _________________________________
                                             W. FRANK BROWN, III, SPECIAL JUDGE




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