                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                August 27, 2012 Session

             ROBERT REECE ET AL. v. HELEN S. VALOIS ET AL.

                Appeal from the Chancery Court for Johnson County
                   No. 6293     G. Richard Johnson, Chancellor


            No. E2011-02615-COA-R3-CV-FILED-SEPTEMBER 27, 2012


The issue in this case is whether a warranty deed made by a 98-year-old uncle to his 85-year-
old niece should be set aside for lack of competence or undue influence. Following a bench
trial, the court found that the uncle was competent and that the niece did not exert undue
influence on him. The uncle’s children appeal. We hold that the evidence does not
preponderate against the trial court’s findings. Accordingly, we affirm.

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

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

John Banks, Elizabethton, Tennessee, for the appellants, Robert Reece, individually and as
administrator of the estate of Benjamin Harvey Reece; Judy Reece Arwood; Jerry Reece; and
Richard Reece.

George T. Wright, Mountain City, Tennessee, for the appellee, Helen S. Valois.

                                        OPINION

                                             I.

       This is an action to set aside a warranty deed executed by Benjamin Harvey Reece
(“the Uncle”) to his niece, Helen S. Valois (“the Niece”), on June 10, 2008. The deed
transferred 39 acres of mountain land (“the Mountain Land”) that the Uncle acquired in 1993
from his sister, Victoria Reece. Victoria, who predeceased her brother, is the Niece’s aunt.
        The action was initially filed by all of the Uncle’s children, “on behalf of [the Uncle],
their father.” In April 2009, the Uncle’s son, Robert Reece, was appointed in North Carolina
– the state of the Uncle’s residence – as “general guardian” over the Uncle’s person and
property. In light of the guardianship, the complaint was amended to reflect that each child
was a plaintiff individually and in a representative capacity on behalf of the Uncle. The
Uncle died on February 24, 2010, just short of his 100th birthday. Robert was appointed in
North Carolina as the administrator of the Uncle’s estate. This resulted in a second amended
complaint. Where possible, we will refer to the plaintiffs collectively as “the Children.”
Because of all the common last names, we will occasionally refer to a party or person by his
or her first name. Those references, however, should not be interpreted as a suggestion of
familiarity or disrespect.

       As of June 10, 2008, the Uncle was 98 years of age. Despite his advanced age, he
lived alone on his 108 acre farm in North Carolina, a very short distance from the Mountain
Land. The Uncle received daily assistance from his family with respect to his medications,
meals, and housekeeping. His medical problems as of that date included a history of prostate
surgery, heart attack, hip replacement, hearing impairment and diminished vision. By all
accounts, he was “proud,” “independent,” and “private,” including with regard to his
financial affairs. Nevertheless, he allowed his son Robert to be a signatory on his bank
account because he would sometimes forget to pay his bills.

       The Niece was 85 years of age on June 10, 2008. The Uncle was the youngest brother
of the Niece’s mother. The Niece lives in Hilton Head, South Carolina, but spent her
summers in Newland, North Carolina. Newland is close to the Mountain Land. While in
Newland, the Niece would visit with the Uncle periodically. According to the Niece, the
Uncle lived in her family’s home while he finished high school.

       The trial court made some specific findings as to the relationship between the Uncle
and the Niece, which bear repeating here:

              The [Niece] and [the Uncle] had a good, healthy, wholesome,
              enduring, loving relationship through the years. When she did
              not come to visit him in person, which may be . . . two to four
              times per year, she would send him . . . small gifts from time to
              time. He liked her.

        On June 9, 2008, the Niece, in the Uncle’s presence, stated to Robert Reece that she
was taking the Uncle to a lawyer’s office and he was going to make her a deed to the
Mountain Land. Robert protested that no such thing was going to happen. Robert later
testified that the Niece assured him that she was buying the land. Robert was satisfied with

                                               -2-
that response even though, according to Robert, they did not discuss how much she was
paying for the property.

        The Niece did in fact pick the Uncle up at his home on June 10, 2008. He rode with
her to the office of attorney Bill Cockett in Mountain City. According to the Niece, she had
never before driven to Mountain City; she followed her Uncle’s directions until they came
to a sign in front of a lawyer’s office. The Niece went inside, spoke to the receptionist about
what they needed, and then summoned the Uncle to come inside. Mr. Cockett interviewed
the Uncle, and prepared the deed. She walked across the street and recorded the deed. She
took the Uncle back home where she encountered Robert and his wife, Barbara. According
to the Niece, Barbara became very angry when told that the Uncle did in fact deed the
Mountain Land to the Niece. Robert, according to the Niece, was much more cordial.
However, he later made an issue of the matter by demanding payment. The Niece responded
that the transfer of the land was a gift. This action was filed shortly thereafter.

        At trial, all of the Children and the Niece testified. The Uncle’s treating physician
testified by deposition as did attorney Cockett and one of his associates who helped him
interview the Uncle. Regrettably, the record before us does not include the deposition of the
physician or his notes that were attached to his deposition as an exhibit. Also missing are the
depositions of the attorneys. Our best indication of the content and flavor of that testimony
is in the court’s lengthy opinion announced from the bench. Accordingly, we have repeated
that excerpt from the opinion:

              . . . . They came to the office of Bill Cockett, a lawyer here in
              Mountain City, and . . . they went into Mr. Cockett’s office; and
              he had never met either one of them before. He had never done
              any business for either one of them before and the receptionist
              came back and said, “There’s a couple out here who want you
              to draft a deed.”

              Well, he sat down and talked with them and immediately
              recognized that [the Uncle] was an elderly gentleman. And
              since Mr. Cockett had been practicing law for 30 years, plus,
              and had devoted those 30 years primarily to the real estate
              practice of law, when he saw [the Uncle], red flags went
              off. . . . [H]e explained that experienced real estate lawyers
              know that when an elderly person comes into their office and
              wants to deed some property away to someone other than their
              children, he says, “It’s a red flag. . . .” So any time that an
              elderly person comes into my office, it’s standard procedure,

                                              -3-
every time, that we absolutely assure ourselves that they know
what they’re doing, that they’re competent to sign the deed.”

So, he took extra time to chat with [the Uncle]; and he doesn’t
remember what all they talked about, but he remembers, of
course, [the Uncle] knew the basics, what day and month and
name, etc., etc.; and he says that it’s his recollection that [the
Uncle] brought the deed with him, the original deed from
Victoria to [the Uncle] on the [Mountain Land]. And Mr.
Cockett goes on to explain that he did not go to the courthouse
and look up the description . . . and that the only way he could
have gotten it was by someone giving it to him. And it’s his
recollection . . . that the way he got the description . . . was that
[the Uncle] had the original deed from Victoria . . . “in its blue
cover.”

                             *   *     *

So, [the Uncle] evidently had the wherewithal to, first, know
that he was going to deed that property because he brought a
copy of the deed with him. He had announced it along with the
[Niece] to at least Robert and his wife and maybe some other
people the night before. . . .

He is absolutely sure that [the Uncle] was competent and had the
capacity to understand what he was doing and that he wanted to
do it. . . .

So, then we get down to, “Well, . . . [w]hat is the value of this
property?” Well, the long and short of it is that neither [the
Uncle] nor [the Niece] knew the value of the property. Mr.
Cockett’s recollection is . . . that he . . . called somebody. He
thinks he called the County Trustee’s office to find out what the
tax value was; and it’s his recollection it was around $35,000.
But, of course, now we know when, we look to the deed from
Victoria to [the Uncle], that that deed[] also recites “$35,000.”

So, when they decided on the $35,000, Mr. Cockett became
concerned about the payment terms, and there was some
discussion. [The Uncle] said he didn’t care. He didn’t want

                                 -4-
anything. There was this $5,000 that had been paid to Mr.
Bunton to make a right-of-way into the property and a pond. So,
there was at least $5,000 passed between the [Niece] and [the
Uncle]. The $5,000 was cashed and deposited into his account
and no problem.

But, Mr. Cockett . . .said, “Well, what do we do about the other
$30,000? . . .” He then began a discussion with the parties about
gift taxes. . . . And, they said, “Yeah. Okay, we’ll make it a
gift, whatever, that’s fine, yes, it’s a gift.” And he said, “Well,
you know, if it’s a gift then you’ve got to think about gift taxes”
and he talked about that with them. . . . And [the Uncle] wasn’t
overly concerned.

[The Uncle] said he didn’t want the money, that everything was
okay, he would take the $5,000. And then the question came up,
“Well, did the [Niece] give him the other $30,000?” She swore
unequivocally she did, she wrote him a check for it. The check
was never cashed and never found, and she didn't bring her
check register, and wasn't asked to.

Both Mr. Cockett and another lawyer he called in there . . . saw
the [Niece] pass a check to [the Uncle]. They did not see the
check itself, the details; they saw her pass a check. Was the
check for $5,000 or $30,000 or $35,000? Was it one check or
was there two? One check is here, it’s for the $5,000 and it’s
very evident from Mr. Cockett’s deposition that [the Uncle] was
satisfied with the $5,000; he just wanted her to have the
property.

. . . . And Mr. Cockett remembered that [the Uncle] had
mentioned that he and Victoria, i.e., his sister, wanted the
[Niece] to have this property. And . . . Mr. Cockett makes it
clear to this Court.

. . . Mr. Cockett . . . made notes about what happened that day,
and the notes are in the record and part of an exhibit. Yeah,
looking at my notes now, in the deposition Mr. Cockett told us
that, “[the Uncle] said, ‘Victoria wanted her,’ ” the [Niece], “ ‘
to have the property.’ ” And confirms several times that [the

                                -5-
Uncle] had said that his children knew about it, i.e., the
conversation the night before, and they were okay with it.

                             *   *     *

So, Mr. Cockett, to again assure himself as a professional that
[the Uncle] was competent and could sign the deed, he called
another attorney in the office, a lady by the name of Sarah
Lawson. And she had been in practice . . . since ‘96 or so . . .;
and her line of work also was real estate and she did some other
things but she reiterated that the policy in their office was when
anybody elderly comes in and wants to convey property to
someone other than their children, there’s this process they go
through. And she has to come in and chat with the people and
look them over. And so she did.

. . . . And in her presence, Mr. Cockett continued some of the
colloquy between he and the [Niece] and [the Uncle]. And
while Ms. Lawson was in the room, Mr. Cockett talked
about . . . lots of stuff, but one thing she could remember was
the gift tax. And while she was in the room, she saw the [Niece]
pass a check to [the Uncle]. And when asked what the check
was for, . . . “She,” the [Niece], “was going to pay him for the
property.” And she was only in there about ten minutes but she
said that chatting, looking and talking, that he appeared fully
competent, knew what he was doing, and was very capable of
signing the deed.

                             *   *     *

Well, here’s this elderly man that it’s alleged that he doesn’t
know what he’s doing, he’s getting up every morning, he’s
putting his own clothes on. . . . He, very definitely, from the . . .
testimony of the children, their father was not totally
incompetent and incapacitated all the time. Very obvious[ly], he
had lucid moments with them from time to time.

So, the [Children] did . . . what they should do, they took the
deposition of Dr. Whitlock. He is an internal medicine doctor
in Boone, North Carolina; again, just a few miles over the line

                                 -6-
here from Mountain City. And he is Board-certified in the sub-
specialty of geriatrics, the medicine for old people. He had
known [the Uncle] for several years, had treated him at least
since the 1990’s, I think, at a time when [the Uncle] was in his
nineties. And if you look at his notes that are attached to his
deposition as an exhibit . . . one comes to the general conclusion
that Dr. Whitlock did not commit himself to the incapacity to the
point that [the Uncle] could not make decisions until after this
lawsuit was brought and at the time when the children asked for
an opinion letter.

I cannot find in those notes . . . anything in May, June, July. I
can’t find anything in there . . . at the time that [the Uncle]
executed this deed.

Of course, it may be because lawyers and judges like the
witnesses to answer directly, but in his notes and in his
summaries from his office, he hops, skips and jumps a bit about
“Was [the Uncle] lucid at the time he signed this deed?” The
answer . . . was, “Well, he had difficulty making decisions.”
And then he said, “Well, he was impaired. He did have hip
surgery. He was a little hard of hearing. He couldn’t see too
good.”

And about the closest we get to . . . tying Dr. Whitlock down is
in his deposition. But you’ve got to remember that this
physician does not state anywhere . . . that he saw [the Uncle]
. . . close to June of [2008]. . . .

                            *   *     *

In 2009, Dr. Whitlock writes the opinion letter. He says that the
physical examination of [the Uncle], quote, “suggests a
subcortical dementia.” Says “he’s factually impaired and he
may know the day and week and month, but he has little
insight,” he says “into events or life decisions.” And then, this
is another example of how Dr. Whitlock answers the question,
“Did [the Uncle] have the capacity to sign that deed in June of
[2008]?” And he says, “Not only is it my professional opinion
now that any major decisions made by [the Uncle] over the last

                                -7-
year would have been made with limited faculties, but I believe
that he needs concerted family to help make decisions for him
in the future.”

“Limited faculties?” Limited faculties in and of itself does not
mean that someone is incompetent to sign a deed. It doesn’t
mean someone doesn’t have the capacity to sign the deed. In
spite of all that, Dr. Whitlock opined that [the Uncle] had
limited faculties, had impaired judgment, was not good at
making decisions; and that’s what I mean about the good doctor
hop, skipping and dancing around this most crucial question.

When pressed, he answered more specifically and then in
Lawyer Cockett’s deposition there’s a most interesting turn of
events. One of the attorneys asked Mr. Cockett if he knows this
doctor. He said I’ve known him for 30 years. [“]How have you
known this doctor over in Boone for 30 years? Because my wife
is a doctor over there.” . . . “And I’ve dealt with Dr. Whitlock on
other matters about similar to this.”

And Mr. Cockett’s opinion was that Dr. Whitlock was way to
quick to the draw about declaring people incompetent when
their children asked him to, and he led me to believe in his
deposition that that was Dr. Whitlock’s reputation. You know,
“If it’ll help the children and help my patient, I’ll say they’re
incompetent.” And, I’m sure there are medical reasons for Dr.
Whitlock’s opinion, but, to me, not only his deposition, his
opinion letter, these notes, they’re not very convincing, they’re
not very persuasive.

                            *   *     *

There is very definitely animosity between [the Uncle]’s
children. I pick up particularly on his daughter-in-law, Barbara,
some from Robert, that they are very upset that their father
would make a gift of this property or sell it – well, make a gift;
they said it was okay to sell . . . this property to their cousin,
their dad’s niece. And Robert Reece confirms for us that when
[the Uncle] told Robert the night before, about “I’m going to
execute this deed tomorrow,” Robert’s testimony was that he

                                -8-
asked his cousin, the [Niece], what the value of the property
was. She said, “I don’t know.” And this is when, according to
Robert’s testimony, that the [Niece] told Robert, “This property
was promised to me from Aunt Victoria.”

And if you follow the line that’s being drawn, it’s pretty easy to
see what the brother to Aunt Victoria was doing; he was
fulfilling a promise. Maybe he and Aunt Victoria had this in
mind all along, but Robert testifies that the [Niece] told him that
this property was promised to her from Aunt Victoria. And of
course, Aunt Victoria deeded it to [the Uncle], as I’ve
mentioned in ‘93.

And, when this matter came to a semi-head outside of court,
before court, Robert was not very pleased. He said, “Well,
okay, go ahead, pay full value for it.” . . .

                            *   *     *

I was shocked a little bit on cross-exam when Mr. Robert Reece
said that he didn’t tell the [Niece], quote, “nothing” about his
father’s mental condition. . . . And the night before [when] the
gift or conveyance was announced, Robert did not take that
opportunity to take the [Niece] aside and tell her all that he is
now telling the Court about his father’s alleged incompetence.

                            *   *     *

After [the Uncle] was admitted to the nursing home care facility,
and I recollect that to be about April of . . . ‘09. He died in
February of 2010. You know, in addition to those findings that
I’ve made that in my mind show that [the Uncle] knew what he
was doing when he signed this deed, let’s don’t forget, too,
about [the Uncle] being independent, proud, just a fine hard old
guy. Everybody describes him as a gentleman.

Let’s don’t forget that he had other property. In other words, he
was not impoverishing himself by conveying . . . the [Mountain
Land] to the [Niece]. He had a million-dollar farm across the
line here and they say the farm is worth – the 108 acres is worth

                                -9-
a million because it’s right across the street from . . . Beech
Mountain Resort . . . So, my point is, he was not impoverishing
himself by conveying this property.

There was hostility. Robert Reece admits it . . . on cross-
examination. There was a discussion about [the Uncle] being
concerned that Robert . . . and the kids were going to put him in
the nursing home. And [the Uncle]. . . was hostile toward him
because [the Uncle] thought that Robert and the children were
trying to put him in a nursing home and he didn’t want to go.

Again, Robert Reece makes it abundantly, crystal clear; he said
this on direct several times, in his discovery deposition, on
cross-examination in court. The children agreed with this so
long as she pays what it’s worth. In other words, “If it’s a
purchase for fair consideration, that’s fine with us; but if it was
a gift, no way.” . . .

                             *    *     *

There’s a right-of-way into the property. [The Uncle] knew that.
He knew that on the [Mountain Land] that there was a right-of-
way issue “and if we’re getting the deed done, we ought to tell
the lawyer about that.” And [the Uncle] had enough presence of
mind to do that because they talked about it. And Mr. Cockett
was briefly concerned with it until he satisfied himself that the
right-of-way was okay. . . .

Well, did [the Uncle] have the capacity and the competency to
sign, execute, that deed in June of ‘08? Well, we start off first
with a premise, and the premise . . . is that in Tennessee there is
a presumption that adult persons are sane rather than insane and
capable rather than incapable to direct their personal affairs until
satisfactory evidence to the contrary is presented; mental or
physical impairment should never be presumed.

Well, . . . the [Children] have the burden of proof by a
preponderance of the evidence . . . because there’s a
presumption in the law that [the Uncle] knew what he was doing
. . . . [J]ust because you’re an old guy or an old woman doesn’t

                                 -10-
             mean that you don’t have the sense to do what you’re doing.
             Age, in and of itself, is not conclusive at all of a person’s
             capacity, mental capacity, to sign a deed.

             This Court concludes that [the Uncle] had an intelligent
             comprehension of the act of transferring this property, that there
             has not been an iota of evidence in this record that there’s been
             any improper influence on him, coercion, duress to make him do
             this; zero, zilch.

             The Court finds that the execution of the deed from [the Uncle]
             to the [Niece] was a conscious, voluntary, intelligent act that he
             comprehended. He understood what he was doing. Now, you
             understand that in Tennessee . . . it’s not necessary that [the
             Uncle] dispose of his property with judgment or discretion; it’s
             just necessary that he understands what he is doing. . . .

             Not only was he not under any undue influence, he was not
             under any improper influence of any kind that was exerted by
             the [Niece] to obtain this conveyance, and there’s no suspicious
             circumstances. . . .

             [The Uncle] intended to make this gift and he had love and
             affection for the [Niece], enduring love and affection for many
             years; not just this one time, for many years. And with Aunt
             Victoria, [the Uncle]’s sister, evidently, there was a relationship
             there too.

             [The Niece] never had the type of close, personal, confidential
             relationship that would require me to set aside the deed. . . . At
             the time that [the Uncle] signed this deed he was lucid. The
             theories of the [Children] were not proven by a preponderance
             of the evidence. Accordingly, the Court denies the request to set
             aside the deed and taxes the cost to the [Children]. . . .

The court incorporated its memorandum opinion into the judgment.




                                            -11-
                                               II.

      The substance of the Children’s five issues is captured completely in the last two,
which are:

               Whether the evidence preponderates against the Chancellor’s
               findings of fact.

               Whether the Chancellor correctly applied the law to the facts.

                                               III.

       Our standard of review of a trial court’s findings of fact in a bench trial is set by Tenn.
R. App. 13(d) . The court’s findings are presumed correct unless the evidence preponderates
against them. Id. However, we “will not re-evaluate a trial judge’s assessment of witness
credibility absent clear and convincing evidence to the contrary.” Wells v. Tennessee Bd.
of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). This deference is based upon the realization
that

               trial courts are able to observe witnesses as they testify and to
               assess their demeanor, which best situates trial judges to
               evaluate witness credibility. Thus, trial courts are in the most
               favorable position to resolve factual disputes hinging on
               credibility determinations.

Id. (citations omitted). Moreover, in the absence of transcripts of the testimony that relate
to the findings being challenged, “we conclusively presume that the findings of fact made
by the trial court are supported by the evidence and are correct.” In re M.L.D., 182 S.W.3d
890, 894 (Tenn. Ct. App. 2005)(citing J.C. Bradford & Co. v. Martin Constr. Co., 576
S.W.2d 586, 587 (Tenn.1979)). The trial court’s conclusions of law are reviewed de novo
without any presumption of correctness. C-Wood Lumber Co. v. Wayne County Banks, 233
S.W.3d 263, 272 (Tenn. Ct. App. 2007).

                                               IV.

       The Children characterize the Uncle as weak, frail, and easily influenced. In their
view, he was completely at the mercy of the Niece. They believe she more or less kidnaped
him from his home, and took him to a lawyer’s office that she knew would help her in her
evil plan to take the Uncle’s property. While there, the thought process goes, she told the
lawyer what was to be done and he, in total disregard of the Uncle’s limitations, drew up the

                                              -12-
deed and watched while the Uncle signed it. The problem with this argument is that it
completely disregards the factual findings of the trial court. The trial court found that the
Uncle was proud and independent. The trial court also found that the Uncle and the Niece
announced their intentions the night before the transfer was made. The court further found
that the Uncle had enough presence of mind to know that the deed from Victoria would be
helpful; therefore, he took it, in its “blue cover,” to the lawyer’s office. The court opined that
the Uncle wanted to honor the wishes of his sister, Victoria – from whom he had acquired
the land for less than fair market value – that the Niece have the land. The court found that
the Uncle was knowledgeable and conversant concerning the right-of-way and the $5,000
in expenses he had incurred. With respect to the credibility determinations implicit in the
trial court’s findings, there is no “clear and convincing evidence to the contrary.” Wells, 9
S.W.3d at 783. In evaluating the evidence in this case, we are hampered by the absence of
the deposition testimony of two key witnesses, Mr. Cockett and Dr. Whitlock. In the absence
of these depositions, we must presume that the trial court’s findings with respect to the
testimony of these two witnesses are correct. In re M.L.D., 182 S.W.3d at 894.

       While we are on the critical subject of the Uncle’ competence, it will be helpful to put
the Children’s argument in perspective. The thrust of their argument is that their father, the
Uncle, could not have been competent to execute the deed because he was later diagnosed
with dementia that must have existed at the time he signed the deed. Numerous appellate
opinions can be found which have affirmed a trial court’s finding that a person was
competent to execute a document despite pre-existing dementia. See, e.g., Fell v. Rambo,
36 S.W.3d 837, 846-47 (Tenn. Ct. App. 2000) (a reviewing court will not second guess trial
court for rejecting testimony of expert who saw the person after the fact and testified that her
dementia prevented the person from being lucid); Dickson v. Long, No. M2008-00279-COA-
R3-CV, 2009 WL 961784 at *3 (Tenn. Ct. App. M.S., filed April 8, 2009)(evidence of
dementia does not prove incompetence with regard to a particular transaction). The trial
court was correct, also, that a person does not have to exercise “judgment and discretion” to
be competent; all the law requires is that a person understand the “nature, extent, character,
and effect of the transaction.” Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d
291, 297 (Tenn. Ct. App. 2001). Whether or not a person has that capacity is a question
entrusted to the trier of fact. Dickson, 2009 WL 961784 at * 3. As we have stated, the trial
court in this case determined that the Uncle was competent to sign the deed and there is not
clear or convincing evidence to disturb that finding.

       The Children also argue that the trial court failed to analyze this case under the general
outline for confidential relationships and undue influence articulated in Kelley v. Johns, 96
S.W.3d 189 (Tenn. Ct. App. 2002). They repeat the following language from Kelley in their
brief:



                                              -13-
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. In re
Elam’s Estate, 738 S.W.2d 169, 173 (Tenn. 1987); In re Estate
of Hamilton v. Morris, 67 S.W.3d 786, 792 (Tenn. Ct. App.
2001); Fell v. Rambo, 36 S.W.3d 837, 847-48 (Tenn. Ct. App.
2000). In addition to proof of a transaction benefitting the
dominant person in a confidential relationship, 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. Halle v. Summerfield, 199 Tenn. at 454-57, 287
S.W.2d at 61-62; In re Estate of Maddox, 60 S.W.3d at 89;
Mitchell v. Smith, 779 S.W.2d 384, 388 (Tenn. Ct. App. 1989);
1 Pritchard on Wills § 148, at 233.

                            *    *     *

Confidential relationships can assume a variety of forms, and
thus the courts have been hesitant to define precisely what a
confidential relationship is. Robinson v. Robinson, 517 S.W.2d
202, 206 (Tenn. Ct. App. 1974). In general terms, it is any
relationship that gives one person the ability to exercise
dominion and control over another. Givens v. Mullikin ex rel.
Estate of McElwaney, 75 S.W.3d 383, 410 (Tenn. 2002);
Childress v. Currie, 74 S.W.3d at 328; Mitchell v. Smith, 779
S.W.2d at 389. It is not merely a relationship of mutual trust and
confidence, but rather it is one

       where confidence is placed by one in the other
       and the recipient of that confidence is the
       dominant personality, with ability, because of that
       confidence, to influence and exercise dominion
       and control over the weaker or dominated party.

                                -14-
              Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App.
              1973).

Id. at 196-197. The Children’s reliance on Kelley is misplaced for several reasons. The full
text of the opinion shows that the first paragraph in the quotation was written in the context
of an issue of the admissibility of evidence. Thus, the language was intended in Kelley to
show that the scope of proof allowed is generally broad. Id. at 195. There is no issue in the
present case about the admissibility of evidence.

        Second, and more importantly, the Children insist again on ignoring the findings of
the trial court in favor of indulging their own suspicions which they try to relate to the
language of Kelley. We can best explain by illustration. The Children presumably believe
that the Niece held some element of fascination for their divorced 98-year-old father. Any
such suspicions are in conflict with the trial court’s finding that the relationship was
wholesome, loving and longstanding. The Children say that the Uncle was “completely at
[the] mercy” of the Niece because he was out with her in a car. This argument is in conflict
with the trial court’s finding that this 98-year-old farmer was still proud and independent and
only he knew the way to Mountain City from his home. They say that she picked a lawyer
who felt no obligation to look out for the Uncle. The trial court specifically found that before
Mr. Cockett would make the deed, he interviewed the Uncle at length. The Children believe
that the Uncle’s physical and mental impairments prevented him from understanding what
was going on. We have dealt with the errors in this argument and need not repeat our
discussion here. The Children argue that the Niece did all of this in a veil of secrecy. The
trial court found that she and the Uncle in fact informed the family of their intentions the
night before the transaction. The Children argue that Mr. Cockett should have talked to the
Uncle in private. This argument seems, again, to refuse to acknowledge Mr. Cockett’s
testimony that he takes special precautions when preparing a document that will be executed
by an elderly person. The Children argue that it was unnatural for the Uncle to deed this
property to a distant relative to whom he was not particularly close. This argument ignores
the finding that the Uncle acquired this property on very favorable terms from his sister,
Victoria, and that in deeding the Mountain Land to the Niece he was fulfilling a promise to
Victoria. The argument also ignores the finding that the Uncle had a long-standing,
wholesome affection for the Niece and that he was having some conflict with his family and
with Robert in particular. The Children argue that the Niece was clearly engaged in fraud
because she gave conflicting stories when Robert challenged her. The trial court considered
the argument and found no such conflict. The Children argue that suspicious circumstances
exist because the Niece paid less than the full value of the Mountain Land. It is true that she
paid less than the land is worth. The court found that the Uncle resolved to make the Niece
a gift of the Mountain Land, provided she would pay him back his out-of -pocket expense
of building the road and the pond. It is clear from Kelley that the convergence of several

                                              -15-
factors might make a case suspicious whereas the existence of only one generally proves
nothing. Id. at 196. In short, we hold that the factual findings of the trial court make Kelley
inapposite in the present case.

        Simply stated, the evidence does not preponderate against the factual findings of the
trial court underpinning the trial court’s ultimate conclusion. Furthermore, the trial court, in
reaching its ultimate conclusion, correctly applied the relevant law to the facts.

                                              V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellants, Robert, Reece, individually and as administrator of the estate of Benjamin Harvey
Reece; Judy Reece Arwood; Jerry Reece; and Richard Reece. This case is remanded,
pursuant to applicable law, for collection of costs assessed by the trial court.


                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




                                              -16-
