                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                          March 18, 2004 Session

 IN RE: UPPER CUMBERLAND DEVELOPMENT DISTRICT, OFFICE
OF THE PUBLIC GUARDIAN, CONSERVATOR FOR ALVIE PUCKETT,
         GLORIA JEAN EVINS v. HELEN PUCKETT, ET AL.

                   A Direct Appeal from the Chancery Court for DeKalb County
                     No. 1999-70     The Honorable Vernon Neal, Chancellor



                                       No. M2002-02208-COA-R3-CV


        Administrator Ad Litem for estate of deceased-grantor appeals trial court’s finding that
deceased-grantor was competent at the time he executed a deed of real property to his daughter, and
that he was not acting under undue influence at the time of execution. We affirm.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Gloria Jean Evins of Lebanon for Appellant, Gloria Jean Evins, Administrator Ad Litem

J. Hilton Conger of Smithville for Appellee, Helen Puckett

                                                    OPINION

       This dispute arises from circumstances surrounding a deed of real property. In late January
1989, Mr. Alvie Puckett (“Alvie Puckett”), now deceased, was kicked in the head by a horse and
sustained a skull fracture and damage to the frontal lobe of his brain. At the time of the accident
Alvie Puckett was 81 years old.

       On January 26, 1989, Alvie Puckett was admitted in a comatose state to Vanderbilt
University Hospital with an open, depressed, skull fracture and intracerebral hematoma. He
underwent a “[l]eft frontal temporal craniectomy for evacuation of [an] intracerebral hematoma.”1

         1
           The following additional procedures were performed on Alvie Puckett during his stay at Vanderbilt University
Hospital: subdural tap, tracheostomy, gastrostomy, camino ICP monitor placement, central venous line placement, lumbar
                                                                                                         (continued...)
The hematoma was successfully removed and over the course of the ensuing weeks Alvie Puckett
regained consciousness “to the extent that he could intermittently follow simple commands.” Alvie
Puckett was discharged from Vanderbilt University Hospital on February 27, 1989. In addition to
a skull fracture and intracerebral hematoma, the hospital’s discharge summary stated that Alvie
Puckett’s CT scan revealed two smaller hemorrhages and a “left to right midline shift” of the brain.


        In a letter dated February 27, 1989, Dr. Noel Tulipan (“Dr. Tulipan”), the attending physician
at Vanderbilt University Hospital, notified Alvie Puckett’s regular physician, Dr. Jerry Puckett (“Dr.
Puckett”), that he was “somewhat pessimistic regarding Mr. Puckett’s overall outcome.” Dr. Tulipan
noted that Alvie Puckett seemed to be improving, but conceded that it was unlikely that the patient
would ever become “functional.” Dr. Tulipan further stated that his conclusion was based primarily
upon Alvie Puckett’s advanced age, and noted that the patient’s CT scan “did not reveal any major
significant brain damage except around the area of the hematoma which was in the relatively silent
frontal lobe.” The CT scan apparently revealed a degree of liquefaction in the injured or damaged
area.

       Upon his discharge from Vanderbilt University Hospital, Alvie Puckett was admitted to NHC
Health Care, a nursing home facility, for further care. On March 14, 1989, Alvie Puckett was
admitted to DeKalb General Hospital under the care of Dr. Puckett. Alvie Puckett was discharged
on March 29, 1989 with a diagnosis of “status post depressed skull fracture,” and was ultimately
given a “poor prognosis” for recovery by Dr. Puckett.

        Over the course of the next few years, several additional CT scans were performed, revealing
no significant changes in the physical condition of Alvie Puckett’s brain. In or around March 1990,
Alvie Puckett presented to Dr. Hugh Don Cripps (“Dr. Cripps”) for unspecified reasons not
addressed or explained by either party. In a report dated March 15, 1990, Dr. Cripps stated that
Alvie Puckett was “severely cognitively impaired,” was suffering from progressive dementia, and
further described the patient’s mental condition as “poor” and “chronic.” However, in his deposition
testimony, Dr. Cripps stated that his first opportunity to really “look at” Alvie Puckett’s mental status
was in 1992, when the patient was admitted to DeKalb General Hospital for a delirium reaction. Dr.
Cripps testified that Alvie Puckett’s delirium was caused by a drug that he was taking for
incontinence.


       No formal examination of Alvie Puckett’s mental capacity or status was undertaken until
March 8, 1994. On this date, Dr. Cripps administered a standard geriatric examination, or mini-
mental status examination, to Alvie Puckett. Dr. Cripps testified that Alvie Puckett’s score on the
exam was indicative of severe dementia, and declared Alvie Puckett legally incompetent.



        1
          (...continued)
puncture, electroencephalogram, and a CT scan of the patient’s head.

                                                        -2-
        Testimony from family members reveals that Alvie Puckett did not have regular speech
patterns after his accident, often answering questions with one word or a short phrase. It is also
apparent that Alvie Puckett required assistance in cleaning and feeding himself, and at times suffered
from mental confusion. While there appears to be no dispute that Alvie Puckett’s mental capacity
was negatively effected by his advanced age and the accident, the severity and extent of his decline
is disputed.

        In the time between Alvie Puckett’s accident in January of 1989 and Dr. Cripps’ formal
examination of his mental status in March of 1994, Alvie Puckett executed several legal documents,
including deeds conveying tracts or parcels of real property to his son, daughter, and two grandsons.
A brief recitation of the pertinent documents or instruments follows.


        On January 28, 1992, Alvie Puckett signed a Power of Attorney naming his daughter, Ms.
Helen Puckett (“Helen Puckett”), as his “true and lawful attorney in fact, for me in my name and
stead.” This instrument was recorded on June 19, 1992. On March 3, 1992, Alvie Puckett and his
wife, Wilma Puckett (“Wilma Puckett”), signed a deed conveying a one-acre tract of land to their
grandson, Randall S. Puckett (“Randall Puckett”), for and in consideration of the sum of $10.00.
Several months later, on July 27, 1992, Alvie and Wilma Puckett signed a deed conveying a one-acre
parcel of land to their grandson, Shawn Richard Puckett (“Shawn Puckett”) and his wife, Angela
Jean Puckett (“Angela Puckett”), for the sum of $10.00.

         On November 10, 1992, Alvie and Wilma signed a deed granting to Helen Puckett three
tracts of land, the first tract containing approximately 97 acres, the second containing approximately
75 acres, and the third approximately 0.6 acres. This deed, which is at the heart of the controversy
in this matter, states in pertinent part:

                       FOR AND IN CONSIDERATION of the love and affection
               we have for our daughter, and for other considerations of value, WE,
               A.R. PUCKETT and wife, WILMA PUCKETT, have this day
               bargained and sold, and do hereby transfer and convey unto HELEN
               PUCKETT, and her heirs and assigns, with both Grantors, A.R.
               Puckett and Wilma Puckett retaining a life estate in and for the
               remainder of our natural lives, all of our right, title, estate and interest
               in and to three certain tracts or parcels of land situated in the old 25th
               Civil District of DeKalb County, Tennessee....

The deed details the property conveyed, and notes that the one-acre parcels previously conveyed by
Alvie and Wilma Puckett to their son Mr. Donald Puckett (“Donald Puckett”), and grandsons Shawn
and Randall Puckett, were “included but excluded” from the land deeded to Helen Puckett. Helen
Puckett’s deed was recorded on April 24, 1993.




                                                   -3-
       In January 1993, upon learning of the Power of Attorney executed by Alvie Puckett
approximately one year earlier, Donald Puckett took his father to an attorney to sign an instrument
revoking Helen Puckett’s Power of Attorney. Helen Puckett’s January 28, 1992 Power of Attorney
was thereby revoked pursuant to an instrument signed by Alvie Puckett and dated January 8, 1993.


        Approximately one month later, on February 15, 1993, Alvie and Wilma Puckett signed a
deed conveying to Donald Puckett and his wife, Brenda Puckett, for the sum of $10.00, their “one-
half undivided interest”in a one acre tract of land located in DeKalb County, Tennessee. It appears
as though Donald and Brenda Puckett held the other one-half undivided interest in said property
prior to conveyance.

        On March 17, 1994, Donald Puckett filed a “Petition for Appointment of Conservator,”
seeking the appointment of a conservator for Alvie Puckett on grounds that he “suffered and
presently suffers from old head trauma, brain injury, progressive dementia and cognitive impairment
causing him to be incompetent physically and mentally.” The petition alleges that Wilma and Helen
Puckett used anger and criticism to prompt Alvie Puckett to execute the aforementioned deeds and
Power of Attorney, and specifically avers that Alvie Puckett was “substantially impaired and
probably was incompetent” on November 10, 1992 when he executed Helen Puckett’s deed. The
petition requests that Donald Puckett or, alternatively, a non-family member, be appointed as
conservator to “manage the property of Alvie Puckett.” The following day, the trial court entered
an order appointing A. Vester Parsley, Jr. (“Mr. Parsley”) as guardian ad litem for Alvie Puckett.


         Wilma and Helen Puckett filed a joint answer to this petition on April 4, 1994, denying the
allegations of wrongdoing and improper influence and further stating that Alvie Puckett was not
substantially impaired or incompetent when he executed Helen Puckett’s deed. The answer provides
that either Wilma or Helen Puckett should be appointed as conservator for Alvie Puckett in the event
the court deem such an appointment necessary.

        On January 26, 1995, the court entered an agreed order appointing Wilma Puckett as
conservator of “the person and property” of Alvie Puckett. Mr. Parsley was appointed special master
for the purpose of “inquiring into and/or investigating the validity of any transfer of any interest in
realty by Mr. Alvie Puckett which occurred subsequent to his injury of approximately 1989.”


       Donald Puckett filed a petition to remove Wilma Puckett as conservator for Alvie Puckett
on December 31, 1996, alleging that she “failed to perform her duties and obligations in accordance
with the law and has failed to acted in the disabled person’s best interests....” Wilma Puckett died




                                                 -4-
on January 14, 1997,2 and, by agreed order filed May 20, 1997, Ms. Kelly Tayes (“Ms. Tayes”) of
Upper Cumberland Development District, Office of the Public Guardian (“Upper Cumberland”), was
appointed conservator for Alvie Puckett. In October 1997, the court entered an order upon motion
by Ms. Tayes, to add Helen Puckett as a party-defendant.

        On May 12, 1998, Upper Cumberland filed a complaint for declaratory judgment, naming
as defendants Donald Puckett, Brenda Puckett, Helen Puckett, Shawn Puckett, Angela Puckett, and
Randall Puckett. The complaint specifically asked the court to determine whether Upper
Cumberland had a duty to bring an action against the defendants to set aside the deeds from Alvie
and Wilma Puckett to each of the respective parties, and stated in pertinent part:

                           1. . . . Pursuant to the provisions of T.C.A. § 29-14-105, Your
                   Petitioner would pray for a declaration determining whether the
                   Conservator [(Ms. Tayes)] has a duty to bring an action against the
                   above-named Respondents to set aside certain Quitclaim Deeds
                   which transferred real property as set forth below from Alvie Puckett
                   to each of the Respondents....

                   ******************************************************

                           10. Prior to the execution of any of the above documents, in
                   January of 1989, Alvie Puckett suffered a head injury when he was
                   kicked in the head by a mule.3 Following said head injury, Mr.
                   Puckett experienced a deterioration in his mental and physical
                   capacities. Petitioner has been informed that the deeds referenced
                   above were the result of undue influence exercised over Alvie Puckett
                   and Wilma Puckett by Helen Puckett, and that Alvie Puckett was
                   incompetent to execute said documents. The existence of the
                   unrestricted Power of Attorney created a fiduciary or confidential
                   relationship between Helen Puckett and Alvie Puckett. The existence
                   of such a relationship in this transaction where the dominant party
                   (Helen Puckett) receives a benefit from the weaker party (Alvie
                   Puckett) creates a presumption of invalidity due to undue influence.
                   Petitioner has been informed that Alvie Puckett and Wilma Puckett
                   received no independent advice regarding said transaction in order to
                   enable them to make an informed decision regarding the distribution
                   of their assets.



        2
          The agreed order states that W ilma Puckett died on January 14, 1997. Upper Cumberland’s brief states that
W ilma Puckett died on June 17, 1997.

        3
            The record indicates that Alvie Puckett was kicked in the head by a horse, not a mule.

                                                          -5-
                      11. The Quitclaim Deeds referenced above depleted Alvie
               Puckett’s estate of thousands of dollars of valuable real property.

                       12. Your Petitioner would request this Honorable Court to
               make a determination with respect to whether the Conservator has an
               obligation to bring an action to set aside the above-referenced deeds
               and revest the property in the estate of Alvie Puckett for his
               maintenance and welfare; or, in the alternative, seeks a judgment in
               favor of Alvie Puckett against each of the Respondents for the fair
               market value of said tracts of land, as the Court may in its discretion
               deem appropriate....

        The court entered an order of declaratory judgment on March 2, 1999, finding that Upper
Cumberland had an obligation to bring an action on behalf of Alvie Puckett to set aside the deeds
to each of the defendants and to have the property re-vested in “the name of Alvie Puckett for his
maintenance and welfare; or, in the alternative, to seek a judgment in favor of Alvie Puckett against
each of the [r]espondents for the fair market value of said tracts of land....” On June 25, 1999, Upper
Cumberland filed a complaint to set aside the deeds to Donald and Brenda Puckett, Helen Puckett,
Randall Puckett, and Shawn and Angela Puckett.

       Alvie Puckett died on June 28, 1999. Shortly thereafter, Donald and Brenda Puckett filed
a motion to appoint an Administrator Ad Litem to replace Upper Cumberland, noting that the
conservator’s role ended upon Alvie Puckett’s death. The motion requested that Ms. Tayes be
appointed to the aforementioned position.

        Upper Cumberland filed a response to this motion on July 22, 1999, declining to serve as the
Administrator Ad Litem “for the purpose of pursuing the litigation begun as Conservator.” On
August 16, 1999, Ms. Tayes filed a petition of final accounting of the property under her control and
further asked the court to approve the accounting and discharge Upper Cumberland as conservator
for Alvie Puckett. The court granted this petition for final accounting and discharge by order entered
in January 2000.

       On November 15, 1999, Upper Cumberland filed a notice of voluntarily dismissal, dismissing
its complaint against the named defendants without prejudice. The court dismissed Upper
Cumberland’s complaint without prejudice and thereafter entered an order denying Donald and
Brenda Puckett’s motion to appoint an Administrator Ad Litem.

       On January 4, 2000, Donald, Brenda, Shawn, Angela, and Randall Puckett filed a joint
motion to alter or amend the trial court’s order dismissing Upper Cumberland’s action against
defendants, specifically asking the court to “reconsider the earlier entered Orders mentioned herein
and amend the same to allow the appointment of an administrator ad litem and to not voluntarily
dismiss this litigation.” A hearing on the motion to alter or amend was held on January 14, 2000.



                                                 -6-
On February 3, 2000, the trial court filed an order granting the motion to alter or amend, and further
finding as follows:

                       Therefore, it is ORDERED and ADJUDGED that the previous
               entered Order regarding Voluntary Dismissal shall be set aside with
               the causes of action in this case to continue to be litigated until
               ultimately resolved, and the earlier entered Order denying the
               appointment of an Administrator Ad Litem shall be set aside and the
               Court hereby ORDERS that an Administrator Ad Litem be appointed
               in this cause in order to be substituted as the party plaintiff in place
               of the Upper Cumberland Development District who was serving as
               the conservator for Alvie Puckett. The original plaintiff, Upper
               Cumberland Development District, is hereby allowed to withdraw
               from serving as the conservator for Alvie Puckett who is now
               deceased, and shall relinquish the pursuit of this lawsuit to the
               Administrator Ad Litem that shall be approved by the Court upon
               Motion.

        On May 18, 2000, the court filed an agreed order appointing Ms. Gloria Jean Evins (“Ms.
Evins”) Administrator Ad Litem on behalf of the estate of Alvie Puckett. Ms. Evins filed a petition
on June 21, 2000 asking that she be substituted as party plaintiff and further praying that the
“transfer[s] previously described in the original Complaint be set aside and the properties ... included
in the Probate Estate of Alvie Puckett, or in the alternative, that a judgment be entered in favor of
the Administrator [A]d Litem against each of the Defendants for the fair market value of the tracts
of land....”

        Helen Puckett filed an answer to this petition on May 31, 2002, denying that a confidential
and fiduciary relationship existed between her and Alvie Puckett, and further claiming no knowledge
of the January 28, 1992 Power of Attorney until “after the execution of any of the deeds referred to
in the complaint.”

        On June 14, 2002, Donald and Brenda Puckett, Shawn and Angela Puckett, and Randall
Puckett filed separate offers of judgment, agreeing to judgments against them “for a release of any
claim to the property” titled to the respective defendants. Ms. Evins filed notices accepting each
offer of judgment. An agreed order dismissing Ms. Evins’s actions against the above-named
defendants was entered on October 18, 2002.

       A two-day hearing upon Ms. Evins’s petition and Helen Puckett’s answer was begun on June
24, 2002, and concluded on July 30, 2002. In an order filed August 14, 2002, the trial court found:

                      ORDERED and ADJUDGED that the decedent, Alvie R.
               Puckett, was competent at the time he executed the conveyance from
               Alvie Puckett and wife, Wilma Puckett, to Helen Puckett on


                                                  -7-
               November 10, 1992, said conveyance being of record in Record Book
               31, page 782, Register’s Office, DeKalb County, Tennessee, and
               further, that the said Alvie R. Puckett was not acting under undue
               influence at the time he executed the deed to Helen Puckett. It is,
               accordingly,

                       ORDERED and ADJUDGED that the complaint in this cause
               is hereby dismissed and the costs of the cause are taxed to the Estate
               of Alvie R. Puckett.

       Ms. Evins filed a timely notice of appeal of the court’s August 14, 2002 order, and presents
two issues for review, which we restate as follows:

               I. Whether the trial court erred in finding that Alvie Puckett was
               competent at the time he executed the deed to Helen Puckett,
               “ignor[ing] the unimpeached and uncontradicted testimony” of two
               experts.

               II. Whether the trial court erred in finding that Alvie Puckett was not
               acting under the undue influence of Helen Puckett on November 10,
               1992, when he executed the deed to his daughter.

Helen Puckett raises the additional issue of whether the attorney’s fees incurred by Ms. Evins on
appeal “should be awarded[,] regardless of the outcome of this good faith appeal.”

        Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R. App.
P. 13(d).
                                                    I.

      The first issue on appeal is whether the trial court erred in finding that Alvie Puckett was
competent when he executed the deed to Helen Puckett on November 10, 1992.

       In Seat v. McWhirter, 93 Tenn. 542, 29 S.W. 220, 227 (Tenn. 1894), the Tennessee Supreme
Court considered the primary issue of whether Mrs. Seat “was fully capable of understanding and
appreciating what she was doing when she made [two deeds conveying approximately $70,000.00
in property to the McWhirters], and did comprehend the nature of the transaction,” stating:

               The law upon the subject of capacity and undue influence is that
               where the maker of a voluntary conveyance is capable of doing the
               act, and there is no fraud, no concealment, and no advantage taken,
               the court will not interpose. Hadley v. Latimer, 3 Yerg. 537; Coffee


                                                 -8-
              v. Ruffin, 4 Cold. 514. The law does not require that persons shall be
              able to dispose of their property “with judgment and discretion” in
              order to the validity of a conveyance. It is sufficient if they
              understand what they are about. Paine v. Roberts (1880) 82 N. C.
              453. The fact that grantees advised and encouraged the execution of
              the voluntary deeds does not impair the validity of the instruments,
              unless the free agency of the grantor was destroyed. Stone v.
              Wilbern, 83 Ill. 108; Roe v. Taylor, 45 Ill. 485.

      In Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291 (Tenn. Ct. App. 2001), the
Middle Section of this Court further stated:

                      The degree of mental capacity required to enter into a contract
              is a question of law. Nashville, Chattanooga & St. Louis R.R. v.
              Brundige, 114 Tenn. 31, 34, 84 S.W. 805, 805 (1905). Competency
              to contract does not require an ability to act with judgment and
              discretion. In re Ellis, 822 S.W.2d 602, 607 (Tenn. Ct. App. 1991).
              All that is required is that the contracting party reasonably knew and
              understood the nature, extent, character, and effect of the transaction.
              Mays v. Prewett, 98 Tenn. 474, 478, 40 S.W. 483, 484-85 (1897); In
              re Estate of Holmes, No. 02A01-9707-PB- 00158, 1998 WL 134333,
              at *3 (Tenn. Ct. App. Mar. 26, 1998) (No Tenn. R. App. P. 11
              application filed); Roberts v. Roberts, 827 S.W.2d 788, 791-92
              (Tenn. Ct. App. 1991). Thus, persons will be excused from their
              contractual obligations on the ground of incompetency only when (1)
              they are unable to understand in a reasonable manner the nature and
              consequences of the transaction or (2) when they are unable to act in
              a reasonable manner in relation to the transaction, and the other party
              has reason to know of their condition. Restatement (Second) of
              Contracts § 15(1) (1981).

                     All adults are presumed to be competent enough to enter into
              contracts. Uckele v. Jewett, 642 A.2d 119, 122 (D.C. 1994); Foltz v.
              Wert, 103 Ind. 404, 2 N.E. 950, 953 (Ind. 1885). Accordingly,
              persons seeking to invalidate a contract for mental incapacity have the
              burden of proving that one or both of the contracting parties were
              mentally incompetent when the contract was formed. Knight v.
              Lancaster, 988 S.W.2d 172, 177-78 (Tenn. Ct. App. 1998);
              Williamson v. Upchurch, 768 S.W.2d 265, 269 (Tenn. Ct. App.
              1988). It is not enough to prove that a person was depressed




                                                -9-
                   [(footnote omitted)] or had senile dementia.4 To prove mental
                   incapacity, the person with the burden of proof must establish, in light
                   of all the surrounding facts and circumstances, [Roberts v. Roberts,
                   827 S.W.2d 788, 792 (Tenn. Ct. App. 1991),] that the cognitive
                   impairment or disease rendered the contracting party incompetent to
                   engage in the transaction at issue according to the standards set forth
                   above. Butler v. Harrison, 578 A.2d 1098, 1101 (D.C. 1990);
                   Weakley v. Weakley, 355 Mo. 882, 198 S.W.2d 699, 702-03 (Mo.
                   1947); see also Woods v. Mutual of Omaha, No. 02A01-9510-
                   CV-00218, 1996 WL 578489, at *3 (Tenn. Ct. App. Oct. 9, 1996),
                   perm. app. denied (Tenn. 1997) (rejecting an affidavit that did not
                   address the party’s competency regarding the specific contract at
                   issue).

Id. at 297.

        The burden of proving that Alvie Puckett was mentally incompetent on November 10, 1992,
the date of execution of the deed to Helen Puckett, rests with the Administrator Ad Litem in the
present matter. For the following reasons, we find that Ms. Evins has not carried her burden. We
note, initially, that there is no medical evidence in the record to prove that Alvie Puckett did not
reasonably know and understand the “nature, extent, character, and effect” of the deed executed in
favor of Helen Puckett. See Mays, 98 Tenn. at 478, 40 S.W. at 484-85; In re Estate of Holmes,
1998 WL 134333 at *3; Roberts, 827 S.W.2d at 791-92. The record indicates that no evaluation or
examination of Alvie Puckett’s mental state was conducted at or near the time of execution of the
disputed deed, and further reveals that the only mental examination conducted was performed by Dr.
Cripps on March 8, 1994, approximately sixteen months after execution of the deed.


        Despite the fact that no mental evaluation or examination was performed on Alvie Puckett
at or near the time of execution, Ms. Evins argues that the “unimpeached and uncontradicted”
testimony of doctors Cripps and Petrie indicates that the deceased did not have “the mental ability
to understand the consequences of, and/or appreciate the significance of, signing a deed on
November 10, 1992.” We disagree with Ms. Evins’s interpretation or characterization of the
doctors’ testimony.

       In the course of his initial deposition on April 27, 1994, Dr. Cripps testified that he first
evaluated Alvie Puckett’s mental status on March 8, 1994, using a standard geriatric examination.
Dr. Cripps stated that Alvie Puckett’s score on the examination was indicative of severe dementia,

         4
            The court cited to the following cases in support of the position that evidence of senile dementia, alone, is not
sufficient to prove lack of testamentary capacity: Hanks v. McNeil Coal Corp., 114 Colo. 578, 168 P.2d 256, 260
(1946); Street v. Waddell, 3 S.W .3d 504, 505-06 (Tenn. Ct. App. 1999) (holding that evidence of dementia alone does
not prove lack of testamentary capacity).



                                                           -10-
and further noted that his “gut reaction” was that Alvie Puckett’s mental capacity or status had
progressively deteriorated since 1991, the first time he saw the deceased as a patient. Dr. Cripps
stressed that he had no “objective data” to support this opinion.

        During his second deposition on May 2, 2002, Dr. Cripps testified that it was his belief that
Alvie Puckett had alzheimer’s dementia on top of his brain injury. Dr. Cripps stated that it takes an
evaluation and mental status examination to determine if someone is demented, and reiterated that
no such evaluation or examination was conducted until 1994. Dr. Cripps further testified that
“[d]ementia cannot be deciphered in retrospect,” and noted that “trying to say from 1994 what went
on from ‘89 to ‘94, would be a lot of hazard and guess on anybody’s part, whether it is Dr. Petrie’s
or mine.” When questioned specifically as to whether Alvie Puckett could have understood the
significance of executing the November 1992 deed, Dr. Cripps testified:

               Q. So given that he was in a coma for at least a week or six days at
               a minimum, and at the age that he was, and Dr. Tulipan’s indication
               that he expected his prognosis to be fairly poor, do you have an
               opinion as to whether Mr. Puckett could have from memory repeated
               to someone a legal description and told them out of what local farm
               description, such as the Luna farm or something like that, where that
               property would have come?

               A. In what year?

               Q. In 1990, let’s say.

               A. I would just have to say that it would have been – it would have
               probably been unlikely.

               Q. Do you have an opinion as to whether or not he could have
               understood the significance of signing a deed with a life estate in
               himself to someone else in between 1989 and 1992?

               A. I think he probably would have been able to recognize what
               property he owned and probably could have told you who he bought
               it from. I don’t think he probably would have been capable of
               knowing the ramifications of deeding it.

               Q. I didn’t hear you.

               A. I think he probably would have been able to have remembered
               who he purchased it from, what property he owned. He probably
               could have remunerated them, but I think if you asked him the
               question, if you do X, Y, Z, what would be the ramifications of that.


                                                -11-
               I don’t think he would have been possessed with that kind of
               reasoning ability.

       On examination by Helen Puckett’s attorney, Mr. J. Hilton Conger, Dr. Cripps conceded that
any opinion as to Alvie Puckett’s mental capacity between 1989 and 1994 was speculation, stating:

               Q. Dr. Cripps, we started this discussion about an hour and 40
               minutes ago with the proposition that dementia cannot be assessed in
               retrospect. Is that the statement that you made?

               A. Yes.

               Q. And we have spent the last hour and 40 minutes trying to do that,
               have we not?

               A. Yes.

               Q. So anything that you testified to today about Mr. Puckett’s mental
               capacity between 1989 and 1994 is just speculation on your part
               today; is that correct?

               A. Yes.

Upon examination by Mr. Robert Anderson, attorney for Donald Puckett, Dr. Cripps further testified:

               Q. The term speculation has a lot of significance in law. When you
               were giving opinions about Mr. Puckett’s ability at the time, given the
               records and given your having treated him, even though there was a
               gap in your treatment of him, was that an educated opinion, or was
               that pure speculation?

               A. It was an educated opinion, but I feel real uncomfortable trying to
               guesstimate as to what something was that could be objectively
               measured. It just makes me a little uncomfortable to guesstimate
               what it was.

               ******************************************************

               Q. You have seen the medical records from 1989 – whenever in late
               ‘89 or early 1990 when those records end – is there anything
               inconsistent with those medical records with the opinions you shared
               with me saying it was highly unlikely that he could have understood
               the ramifications of signing those various documents?


                                                -12-
A. I don’t think there is anything inconsistent.

Q. When counsel asked you is it possible that he could have
comprehended and understood the ramifications, for you, what is the
difference between answering a question yes, it is possible and for
you having said it is very unlikely that he could have? Tell us from
your perspective what the difference is.

A. As I look at this, I think he had a brain injury from the result of
the horse kicking him and from the high pressure in the brain that
caused him to be in the coma. I think he had injuries. The problem
– to anybody who’s honest and objective about it – there is no way in
the world to know what his mental status exam was six months, nine
months, after the injury because no one measured it. But I would say
he probably had some mental decline as a result of that.

        I think some time after that he started developing alzheimer’s,
and I think that occurred over a slow period of years. The reason it’s
so – to me, fraught with error trying to guess at it. There is such a
wide rate at which people deteriorate with alzheimer’s. So it would
be – and I can’t put a percentage on it, but it could be that he did have
knowledge enough to make simple decisions, but I think it’s very
unlikely that he could have made a complex decision in 1990.

       Complex means that he had to take several pieces of
information, assimilate it, and come up with a plan of attack.

Q. Such as the questions that I asked you about whether he could
understand the ramifications of signing those documents; is that
correct?

A. He probably would not have known details of what you’ve shown
me, but it may have been very possible that he would have known he
was transferring property and to whom he was transferring the
property. He may not have realized – and probably didn’t realize –
all of the legal ramifications of what he was doing, especially with his
wife helping him.

******************************************************

A. ... But in 1991 when I first saw him, he walked in under his own
command. I don’t even remember if he used a walking stick. He


                                  -13-
               would walk in and sit down. And although his conversation was not
               a normal conversation, he would answer questions. And the sad thing
               is I can’t tell you no matter how much I try or how many times you
               ask me, I can’t tell you what his mental status was.

        In his deposition, Dr. Petrie testified that he saw Alvie Puckett on October 21, 1996 and,
based upon his examination at this time and his review of the deceased’s medical records,
determined to a “reasonable medical certainty” that Alvie Puckett was not capable of making
judgments with regard to the execution of legal documents around 1992. We quote at length from
Dr. Petrie’s deposition testimony:

               Q. Now, have you been able to review as many notes as there are
               available for Mr. Puckett following his release from the hospital?

               A. Yes, and let me say that the one area that I think we lack in
               looking through the record, would have been a comprehensive
               assessment where someone would sit down with him on or about the
               time of some of these – when some of these legal documents were
               executed, where someone would have said, Mr. Puckett, does he
               know the month, does he know the date, does he know where he is,
               how is his judgment, and this, unfortunately, is absent.

               ******************************************************

              Q. From your opportunity to see Mr. Puckett in October of ‘96, and
              from your review of the records that exist, can you give us an opinion
              – I’m asking you for an opinion, but can you give us an opinion as to
              whether or not his abilities to reason and to speak and to understand
              would have improved sufficiently so that for any activity that he
              would have been involved in between those two dates, he would have
       appreciata thufnic u et of th lsigctsc to understand and
              h ed s e f atiern in ei l a en ?e

               A. Yes, I believe I can.

               Q. What is your opinion?

               A. My opinion is that he would not have been able to understand his
               actions or the consequences of his actions due to the damage he
               would have had in his judgment, as well as problems in being able to
               persist with certain thoughts and other mental functions that would
               have been necessary for this kind of operation.




                                               -14-
Q. Now, is this based on a physiological damage to him, as opposed
to someone who is psychotic?

A. Yes. This, in my opinion, is related to the initial injury and a
failure of adequate improvement from that injury to allow him to
exercise appropriate judgment.

Q. The original injury occurred on January 26, 1989, and I’m being
repetitive, and I apologize, but I have a reason for it. Would your
opinion that you have now expressed have been the case on August
24th, 1990, some year and seven months after the original injury?

A. Yes, however let me pose as a caveat the lack of data. I would
feel much more comfortable if there had been more data describing
his mental functioning in a standardized way, in a way Dr. Cripps
did.

******************************************************

Q. Could in your opinion at any time between January 26, 1989 and
the day you saw him in 1996 – in your opinion could Mr. Alvie
Puckett guard himself against imposition or resist importunity or
undue influence?

A. I believe he could not.

Q. And I may be repetitive with this, and I apologize if I am, but
would he be able to understand in a reasonable manner the nature and
consequences of any transactions such as a deed, and/or a will?

A. I believe he would not have been.

Q. Would he be able to understand the scope of his holdings as
assets?

A. I believe not.

Q. Would he be able to know all of the objects of his affection,
meaning people?

A. In my presence he called his – he misrecognized his son, thought
he was someone else. That’s harder for me to make a judgment of,



                               -15-
              because I think it’s best to see patients around family members for a
              longer period of time. I couldn’t answer that one.

              ******************************************************

              [Q.] In 1990, would Mr. Puckett have been able to distinguish and
              explain where parcels had come from, as to whether they were out of
              the Potts deed or the Hale deed?

              A. Not in my opinion.

              Q. And this is based on his physiological damage and loss of brain
              matter, as opposed to whether or not he is loony?

              A. Right. This is not a psychiatric disorder really. This is a
              neurological impairment.

              Q. Now, just for clarity, would he have been able to do so in January
              – on January 28, 1992?

              A. I suspect not.

              Q. Why do you say suspect?

              A. Well, once again, I think we’re extrapolating back to his state,
              and judging from the assessments I have seen in the nursing notes
              and the physician’s notes, I see no indication of sufficient
              improvement to make the kinds of logical requirements that – that
              would be necessary to make these legal judgments.

              Q. Do you rely on those kinds of notes and records to make
              assessments?

              A. Yes.

              Q. Would he have been in a position to do the things that are claimed
              that he would have done, been able to do supposedly in November,
              specifically November 10, 1992?

              A. I believe not.

(emphasis added).

       On cross examination, Dr. Petrie testified:

                                              -16-
       Q. The years in question, I believe, Doctor, are [19]90, [19]91,
       [19]92?

       A. Correct.

       Q. And according to your testimony today and the – your letter of
       April 17 [to attorney Robert A. Anderson], we have a critical shortage
       of medical records for that particular area of time; is that correct?

       A. Right.

       Q. In your letter of April 17 you indicated in the first paragraph on
       page two, unfortunately a complete evaluation of the patient’s mental
       abilities was never clearly performed and as is clearly the case in the
       medical records?

       A. Yes.

       Q. Again in the third paragraph of that same letter, page two, the
       medical record is lacking as noted in clear and comprehensive
       descriptions of Mr. Puckett’s status throughout the years when the
       will was executed, and not only the will, but the dates that Mr.
       Anderson referred to, January 28, 1992 and November 10, 1992.

       Then you summarized by saying in the last paragraph, the assessment
       of the patient’s cognitive status in 1991 and [19]92 by objective
       personnel by nurses and others would be extremely helpful in support
       of this position, and we just don’t have that, do we, Doctor?

       A. Right.

In a second letter to Mr. Anderson dated April 25, 1996, Dr. Petrie stated:

       As I stated before, I believe Mr. Puckett suffered from a traumatic
       dementia – a substantial loss of brain cells – from a kicking injury
       exacerbated by his age and other medical conditions. As such, he had
       lost the ability to perform complex verbal skills or sophisticated legal
       negotiations – exactly the kind that would have been necessary for
       him to execute the will in question. I do not believe he understood
       the nature of the deeds or the concept of deeding away the title while
       keeping the right to live on his property. Although of course I did not
       see Mr. Puckett, I can only infer from the data presented that this


                                        -17-
               would have had to be presented to him by someone else, and that he
               simply assented or signed the document without conceiving the
               meaning of this document. In addition, I do not believe he could read
               a legal document without guidance or direction to provide a reasoned
               sense of which property belonged with whom and what effect this
               action would have on his family. I do not believe he could have
               verbalized complex instructions. Again, I suspect he would have
               responded to direction from others. As I have mentioned previously,
               I am only inferring these facts from the substance of the report on Mr.
               Puckett, the lack of any sense of improvement from his prior
               pathological state, and the profound injury which he sustained to his
               brain.

         Based upon our review of all of the expert testimony in the record, and the record as a whole,
we find no evidence to preponderate against the trial court’s finding that Alvie Puckett was
competent at the time of his execution of the deed to Helen Puckett. To briefly reiterate, Dr. Cripps
acknowledged that his opinions as to Alvie Puckett’s mental capacity on November 10, 1992 were
mere speculation based on an educated opinion. Although Dr. Petrie was more certain in his opinion
that Alvie Puckett lacked the necessary competency to execute the deed to Helen Puckett, he noted
that he “did not see Mr. Puckett, [and therefore could] only infer from the data presented that [the
will and deeds] would have had to be presented to him by someone else, and that he simply assented
or signed the document without conceiving the meaning of this document.” As to the sufficiency
of the available data, Dr. Petrie conceded that “the medical record is lacking as noted in clear and
comprehensive descriptions of Mr. Puckett’s status throughout the years when the will was executed,
and not only the will, but the dates that Mr. Anderson referred to, January 28, 1992 and November
10, 1992,” and further noted that he “would feel much more comfortable if there had been more data
describing his mental functioning in a standardized way, in a way Dr. Cripps did.” In light of the
experts’ testimony and the fact that no mental examination was conducted regarding Alvie Puckett’s
mental capacity at or near the time of execution of the November 10, 1992 deed to Helen Puckett,
we find that the record does not contain sufficient proof to demonstrate that Alvie Puckett did not
know or understand the nature, extent, character, and effect of the transaction. We therefore affirm
the trial court’s finding of competency.


        As a final note we briefly consider that Donald and Shawn Puckett both testified that Alvie
Puckett was not competent to execute the deed to Helen Puckett on November 10, 1992. Despite
their concerns and allegations of incompetence, Donald and Shawn Puckett both willingly, and
seemingly without hesitation, accepted deeds from Alvie Puckett shortly before and after November
10, 1992. Moreover, Donald Puckett convinced or persuaded Alvie Puckett to sign an instrument
revoking Helen Puckett’s Power of Attorney, despite acknowledging that he did not believe that
Alvie Puckett knew the consequences or effects of a revocation. In contrast to Donald and Shawn’s
allegations of incompetence, Mr. William F. Dyer (“Mr. Dyer”), the attorney who drafted and
notarized the deed to Helen Puckett, testified that he had known the deceased for approximately 40


                                                 -18-
years and, in his opinion, both Alvie and Wilma Puckett were competent when they signed the deed
and were aware of its contents.

         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 in their manner and demeanor while
testifying, is in a far better position than this Court to decide those issues. McCaleb v. Saturn Corp.,
910 S.W.2d 412, 415 (Tenn. Sp. Workers Comp. 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’s testimony lies
in the first instance with the trier of fact, and the credibility accorded will be given great weight by
the appellate court. Id.; In re Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997). The
trial court apparently attributed little weight or credibility to Donald and Shawn Puckett’s testimony
regarding Alvie Puckett’s alleged incompetency and, because we find no evidence in the record to
preponderate against the trial court’s conclusion, we are unwilling to disturb this finding.

                                                  II.


        The second issue on appeal is whether the trial court erred in finding that Alvie Puckett was
not acting under the undue influence of Helen Puckett on November 10, 1992, when he executed the
deed to his daughter. The trial court specifically found that no confidential relationship existed
between Helen Puckett and Alvie Puckett, noting that Helen was not aware of the deed until April
24, 1993.

        Under Tennessee law, “[a] person 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.” See Crain v. Brown, 823 S.W.2d 187, 194 (Tenn. Ct. App. 1991) (citing
Mitchell v. Smith, 779 S.W.2d 384 (Tenn. Ct. App. 1989)). Furthermore, the existence of a
confidential relationship followed by a transaction wherein the dominant party receives a benefit
from the other party creates a presumption of undue influence which be rebutted only by clear and
convincing evidence of the fairness of the transaction. See Matlock v. Simpson, 902 S.W.2d 384,
385 (Tenn. 1995). “To prove the fairness of the transaction, the dominant party may show that the
weaker party received independent advice before engaging in the transaction that benefitted the
dominant party.” Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002) (citing Hogan v. Cooper,
619 S.W.2d 516, 519 (Tenn.1981); Richmond v. Christian, 555 S.W.2d 105, 107-08 (Tenn.1977)
(proof that the donor received independent advice respecting the consequences and advisability of
the gift) (citations omitted)).

       In Childress, the Tennessee Supreme Court clarified that an “unexercised power of attorney
does not in and of itself create a confidential relationship,” stating:

                       The issue of undue influence should “be decided by the
               application of sound principles and good sense to the facts of each
               case.” Id. at 388 (quoting Halle v. Summerfield, 199 Tenn. 445, 454,


                                                 -19-
               287 S.W.2d 57, 61 (1956)). A careful reading of Matlock and
               Mitchell shows that an unexercised power of attorney does not in and
               of itself create a confidential relationship and we clarify Matlock to
               the extent it suggests otherwise. The core definition of a confidential
               relationship requires proof of dominion and control. Matlock, 902
               S.W.2d at 385-86; Mitchell, 779 S.W.2d 384 at 389. When an
               unrestricted power of attorney is executed but has not yet been
               exercised, good sense dictates that there exists no dominion and
               control and therefore no confidential relationship based solely on the
               existence of the power of attorney. In Matlock, there was additional
               evidence of dominion and control based upon the attorney-client
               relationship and the personal execution by the attorney of the will and
               the power of attorney. Matlock, 902 S.W.2d at 385-86. In Mitchell,
               the niece acted as caretaker to her ailing uncle, chose an attorney for
               him, drove her uncle to the attorney’s office where he signed the
               power of attorney and will in her van, and began exercising her power
               of attorney before her uncle’s death. Mitchell, 779 S.W.2d at 386-87.

74 S.W.3d at 329.

        To briefly reiterate, Alvie Puckett executed a Power of Attorney authorizing Helen Puckett
to act on his behalf on January 28, 1992. This instrument was recorded on June 19, 1992. On
November 10, 1992, Alvie and Wilma Puckett executed the disputed deed to Helen Puckett. The
deed was recorded on April 24, 1993. On January 8, 1993, Alvie Puckett signed a document
revoking the Power of Attorney he granted to Helen Puckett.


        Ms. Evins concedes that there is no direct evidence of undue influence in the record; instead,
she relies upon the allegations of Donald, Shawn, and Brenda Puckett that Helen Puckett used threats
to control her parents as the basis for her argument that Helen Puckett unduly influenced Alvie
Puckett into executing the November 10, 1992 deed.

        Donald, Brenda, and Shawn Puckett all testified that they heard or witnessed Helen Puckett
make threats to move out of Alvie and Wilma Puckett’s home in an attempt to force compliance with
her demands. However, neither Donald, Brenda, or Shawn Puckett ever heard Helen Puckett make
threats in connection with the November 10, 1992 deed or the Power of Attorney, and Donald and
Shawn Puckett both conceded that they are not aware of any specific instances of undue influence
exerted by Helen Puckett over the deceased. Shawn Puckett further noted that the threats that he
heard were not made until well after the November 10, 1992 deed was executed. When questioned
regarding specific instances of undue influence or pressure, Brenda Puckett stated:

               Q. And as far as any undue influence or pressure that Helen may
               have put on them, you’ve told us that you can’t testify that she


                                                -20-
                pressured Mr. Puckett into signing [the November 10, 1992 deed];
                can you?

                A. No, not that document. No.

                Q. Or any other legal document for that matter; can you?

                A. No, the legal documents wasn’t [sic] done in front of me. I heard
                some pressure remarks from her at different times.

                Q. At different times, but never in connection with signing a legal
                document?

                A. Well, I didn’t know the deeds were done exactly at what time, so
                I don’t know whether it was or not.

        Moreover, Donald and Brenda Puckett both testified that Alvie Puckett was a stubborn man,
and noted that it was difficult to get the deceased to do something against his will. Donald Puckett
further testified that Wilma Puckett was the most likely family member to be able to persuade or
influence Alvie Puckett’s decision making, although he “guessed” that his sister also had some
influence over the deceased. Helen Puckett denied any allegations of overreaching, and further
averred that she never attempted to influence Alvie Puckett to execute any legal document in her
favor.

         We note that the proof in the record is uncontradicted that Helen Puckett did not know of the
November 10, 1992 deed until April 24, 1993, the day it was recorded. Moreover, there is no proof
in the record to refute Helen Puckett’s averments that she did not sign any legal document on behalf
of Alvie Puckett by virtue of the authority of the Power of Attorney. Although his memory of the
events surrounding the November 10, 1992 deed was somewhat fuzzy, Mr. Dyer testified that he did
not suspect or perceive any evidence of undue influence on Helen Puckett’s behalf, and noted that
Alvie and Wilma Puckett did what they wanted with regard to this deed.

         In specific consideration of the above facts, and the entire record in this matter, we find that
there is no basis for finding that a confidential relationship existed between Helen and Alvie Puckett
to give gave rise to a presumption of undue influence. To the extent that appellant’s issue could be
interpreted as raising allegations of undue influence against Wilma Puckett, we note that there is no
evidence in the record to support such an argument. We therefore affirm the trial court’s finding that
Alvie Puckett was not acting under the undue influence of Helen Puckett on November 10, 1992,
when he executed the deed to his daughter.

                                                  III.

        Helen Puckett raises the following additional issue for review, as stated in her brief:


                                                  -21-
               Whether the reasonable attorney’s fees of the Administratrix ad litem
               in [pursuit of] this appeal should be awarded regardless of the
               outcome of this good faith appeal.

        Upon review of Ms. Evins’s briefs to this court, we find no argument or specific request for
an award of attorney’s fees incurred on appeal. To this extent, we find Helen Puckett’s issue to be
moot. In the event that Ms. Evins could be found to have properly requested an award of attorney’s
fees incurred on appeal, we find, based on our discussion, supra, that appellant
is not entitled to an award of attorney’s fees for her appeal in this matter.

                                                IV.

       In conclusion, we affirm the trial court’s final order filed August 14, 2002. Costs of this
appeal are assessed against the appellant, Gloria Jean Evins, Administrator Ad Litem for the estate
of Alvie Puckett, and her surety.

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




                                               -22-
