                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                              September 20, 2016 Session

                 IN RE ESTATE OF GERTRUDE BIBLE LINK

                 Appeal from the Chancery Court for Marion County
                  No. 7677, PR135 Jeffrey F. Stewart, Chancellor
                      ___________________________________

              No. M2015-02280-COA-R3-CV – Filed February 22, 2017
                     ___________________________________

This is an appeal from a jury trial in a will contest. The jury returned a verdict finding
that the contested will was valid. The contestants have appealed, raising numerous issues
and arguing that the evidence presented does not support the jury’s verdict. We affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which RICHARD H.
DINKINS and KENNY ARMSTRONG, JJ., joined.

Jackie Sharp, Jr. and Natalie R. Sharp, Nashville, Tennessee, for the appellants, Carlynn
D. Newcom, Reed B. Durham, and Don E. Durham.

Ronnie J. T. Blevins, II, Jasper, Tennessee, and Jared C. Smith, South Pittsburg,
Tennessee, for the appellee, James Clifford Layne.

                                        OPINION

                      I. BACKGROUND AND PROCEDURAL HISTORY

       This is an action to contest the validity of a document purporting to be the last will
and testament of Gertrude Bible Link. For clarity, we will briefly summarize Ms. Link’s
relevant family relationships before discussing the circumstances surrounding the
document’s execution and the procedural history of this case.

       Ms. Link was born on January 6, 1915. She graduated from Middle Tennessee
State University and worked for many years as a schoolteacher in Marion County,
Tennessee. She married Harlen Link in 1939, and they remained married until Mr. Link
died in 1992. Although Ms. Link did not have any children, she maintained close
relationships with her family. Ms. Link had a particularly close relationship with her
younger sister, Cathryn Durham. Ms. Link and Ms. Durham attended college together
and shared a life-long interest in gardening. They formed a local gardening club together
and traveled to various flower and garden shows. Ms. Durham’s children–Carlynn
Newcom, Don Durham, and Reed Durham–also had close relationships with Ms. Link
growing up. Clifford Layne is the son of Ms. Link’s older sister, Bonnie Layne. 1 Mr.
Layne has been a general sessions and municipal court judge in Marion County since
1974. As she grew older, Ms. Link relied on Mr. Layne for advice in ordering her legal
and financial affairs.

       In 1989, Ms. Link approached Mr. Layne for legal advice, and he referred her to
Zach Kelly, a local attorney with whom he had a personal and professional relationship.
Mr. Kelly drafted a will for Ms. Link, and she executed it in May 1989. Ms. Link’s 1989
will named Mr. Layne as executor of her estate and, in pertinent part, provided that if she
survived her husband, her property would be distributed in equal shares to Cathryn
Durham, Carlynn Newcom, Reed Durham, Donald Durham, and Clifford Layne.

        In 1996, Ms. Link asked Mr. Layne if he would be willing to serve as her attorney-
in-fact. Once again, he referred her to Mr. Kelly. Mr. Kelly drafted a general power of
attorney authorizing Mr. Layne to act on Ms. Link’s behalf in all matters, and Ms. Link
executed it in March 1996. At trial, Mr. Layne testified that he drove Ms. Link to Mr.
Kelly’s office to execute the power of attorney and waited in the lobby while she met
with Mr. Kelly. Although the document was effective upon execution, there is no
evidence that Mr. Layne acted as Ms. Link’s attorney-in-fact prior to 2001.

       In 1998, Ms. Link executed the document at issue in this case. According to Mr.
Layne, Ms. Link told him that she intended to make a new will that would leave all of her
property to him with the exception of a $10,000 devise to her church. Mr. Layne drove
Ms. Link to Mr. Kelly’s office where she met with Mr. Kelly alone while Mr. Layne
waited in the lobby. A handwritten note purportedly written by Mr. Kelly was admitted
as evidence at trial. In pertinent part, the note states:

        3/5/98 Conf w/ Mrs. Gertrude Link

        I met w/ her alone in my office.\
        She was well aware of what she wanted
        to do.


1
 Ms. Link had other siblings, nieces, and nephews, but the record contains little information about them,
and they are not relevant to this appeal.
                                                  -2-
      If estate exceeds $300,000 leave $10,000
      to church.

      Leave everything else outright
      to Clifford Layne. He is to
      handle as he sees fit!!
      I mentioned Betty but she said not at this time.

On March 11, 1998, Ms. Link executed a document drafted by Mr. Kelly that provided,
in pertinent part, as follows:

                       LAST WILL AND TESTAMENT

                                        OF

                             GERTRUDE B. LINK

             I, Gertrude B. Link, of Marion County, Tennessee, being of sound
      and disposing mind and memory, do hereby make, publish and declare this
      to be my Last Will and Testament, hereby revoking all prior testamentary
      instruments.

                                       ARTICLE I

             I direct my Executor: to pay all of my just debts, funeral expenses,
      costs of administration and taxes out of my general estate, as soon as
      practicable after my death.

                                      ARTICLE II

             If the value of my personal estate, excluding the value of my real
      estate, personal effects, automobiles, clothing, jewelry, and household
      furnishings and furniture, is equal to or exceeds the sum of Three Hundred
      Thousand ($300,000.00) Dollars, then I do hereby make the following
      devise:
             A. To the First Baptist Church of Jasper, Tennessee, the sum of Ten
      Thousand ($10,000.00) Dollars, to be utilized only for building and/or
      renovation purposes.

                                      ARTICLE III

                                           -3-
               I do hereby give, devise and bequeath all of the rest, residue and
        remainder of my estate, including both realty, and personalty, and wherever
        located, in fee simple and absolutely, to my nephew, James Clifford Layne.

                                              ARTICLE IV

              I appoint my nephew, James Clifford Layne, as Executor of this my
        Last Will and Testament.

Both pages of the two-page document bear the handwritten initials “GL,” and the second
page bears Ms. Link’s signature as “Testatrix.” Mr. Kelly and his assistant, Danielle
Steele, signed the document as witnesses to its execution and also signed an attached
affidavit affirming that Ms. Link signed the will in their presence and that they attested
the will in her presence and in the presence of each other. The affidavit bears the
handwritten initials “GL” and reflects that it was notarized by Marty Murphy, another of
Mr. Kelly’s assistants. The document does not contain any reference to Cathryn Durham,
Carlynn Newcom, Don Durham, or Reed Durham.

       In 2005, Cathryn Durham died. In 2007, with Ms. Link suffering from dementia,
Mr. Layne authorized her admission to a nursing home and began using his power of
attorney to exercise full control over her finances. From 2007 to 2012, Mr. Layne
exercised his power of attorney to pay for the upkeep of Ms. Link’s house, her nursing
home expenses, and various other expenses from Ms. Link’s funds. In 2012, with Ms.
Link’s health deteriorating further, Mr. Layne contacted Carlynn Newcom to discuss
selling Ms. Link’s house. Ms. Newcom agreed that they should sell the home if Ms. Link
was not going to live in it again. Around that time, Mr. Layne cleaned out Ms. Link’s
house and threw away numerous documents and other items. At Ms. Link’s direction,
Mr. Layne contacted Carlynn Newcom, Don Durham, and Reed Durham prior to selling
the house and allowed them to come take any items they wanted from it. Ms. Link died
in December 2012.

       In January 2013, Mr. Layne filed a petition to probate Ms. Link’s 1998 will. In
May 2013, Carlynn Newcom, Don Durham, and Reed Durham (collectively, the
“Contestants”), filed an amended complaint contesting the validity of the 1998 will. In
the complaint, they alleged that the will was a forgery. Alternatively, they alleged that
Ms. Link did not possess requisite testamentary capacity or testamentary intent when she
signed the will and that the will was procured through undue influence or fraud.2 They
asserted that the 1998 will should be set aside and Ms. Link’s estate should be distributed

2
  Although the Contestants’ amended complaint lists “Mistake” as a separate basis for their will contest,
the allegations related to it are substantively identical to those in the section titled “Testamentary Intent.”
                                                    -4-
according to the terms of the 1989 will. Mr. Layne filed an answer denying the material
allegations of the amended complaint, and the trial court entered a scheduling order that
established various discovery deadlines.

       Following a period of discovery, the Contestants filed a motion for partial
summary judgment asserting that undisputed material facts established (1) that Mr. Layne
had a confidential relationship with Ms. Link prior to her execution of the 1998 will, (2)
that Mr. Layne’s close relationship with Mr. Kelly rendered Mr. Kelly incapable of
providing Ms. Link with independent advice, and (3) that Mr. Layne prejudiced the
Contestants by destroying documents relevant to their case. Mr. Layne opposed the
motion, and the trial court denied it based on its conclusion that material facts were in
dispute.

        The case was set for a jury trial scheduled to begin on July 21, 2015. The day
before trial, Mr. Layne’s attorney spoke with Mr. Kelly’s wife, Elizabeth Kelly. Ms.
Kelly informed Mr. Layne’s attorney that Mr. Kelly would not be able to testify at trial
due to his deteriorating health. She also informed him that she had photocopies of the
handwritten notes Mr. Kelly wrote during his meeting with Ms. Link. Mr. Layne’s
attorney immediately notified the Contestants’ attorneys of his intent to present Ms. Kelly
as a witness regarding Mr. Kelly’s unavailability and to present the handwritten notes as
evidence that Ms. Link received independent advice regarding the will. The Contestants
objected to the late-disclosed evidence at the outset of trial the following day. After
listening to arguments from both sides, the trial judge noted that both parties could have
attempted to depose Mr. Kelly or subpoena his records related to Ms. Link’s 1998 will
and chose not to do so. The judge ruled that Ms. Kelly would be permitted to testify
regarding Mr. Kelly’s health but indicated that he would reserve ruling on the
admissibility of the handwritten notes. Thereafter, the parties presented their proof to the
jury.

        Initially, Mr. Layne presented evidence intending to demonstrate that the 1998
will was executed in compliance with the formalities of law. To that end, Ms. Kelly
testified that Mr. Kelly was not able to testify because he suffered a stroke in 2011 that
left him partially paralyzed and severely affected his ability to communicate. She
explained that, as a result of his condition, she spent an inordinate amount of time each
day trying to communicate with him to accomplish simple tasks. Ms. Kelly also
identified Mr. Kelly’s signature on the 1998 will. In light of Ms. Kelly’s testimony, the
trial court later indicated its satisfaction that Mr. Kelly was not an available witness. The
will’s other subscribing witness and the notary public who acknowledged the witnesses
signatures also testified. Ms. Murphy and Ms. Steele both testified that Mr. Kelly was
very professional and followed the same strict protocol every time he drafted a will for a
client. They explained that, before drafting the will, Mr. Kelly always met with the client
                                            -5-
alone in his office to discuss the client’s intentions. When the client returned to execute
the will, Mr. Kelly allowed only the client, the necessary witnesses, and the notary to be
in the room. Any person that accompanied the client to the office was required to wait
outside. Although neither Ms. Murphy nor Ms. Steele specifically remembered the
execution of Ms. Link’s will in 1998, they identified their own signatures and Mr. Kelly’s
signature on the document. As such, the trial court admitted Ms. Link’s 1998 will into
evidence.

        Next, the Contestants presented evidence aimed at demonstrating that the
document purporting to be Ms. Link’s 1998 will was invalid. Carlynn Newcom testified
at length regarding the close relationship Ms. Link shared with her mother and
maintained that it never changed. She produced a copy of Ms. Link’s 1989 will, which,
she testified, Ms. Link gave to her shortly after executing it. Ms. Newcom testified that
she visited Ms. Link in the nursing home every week, and Ms. Link never mentioned
changing her 1989 will or having another will. She explained that she and her brothers
first learned about the 1998 will after Ms. Link died when Mr. Layne told them that she
left everything to him. Although she acknowledged that Ms. Link did not discuss her
finances openly, Ms. Newcom maintained that Ms. Link would not have disinherited her
family without saying something. Nevertheless, she admitted that she had no evidence
that Ms. Link’s 1998 will was invalid. Ms. Newcom acknowledged that Ms. Link had
her wits about her “[m]ost of the time” in 1998 and that, to her knowledge, Ms. Link was
not afraid of Mr. Layne or under any emotional distress. Don Durham and Reed Durham
also testified, and their testimony differed little in substance from Ms. Newcom’s
testimony. Both testified that Ms. Link did not discuss her finances with them but
maintained that she would not have disinherited their mother. Don Durham testified that
Ms. Link appeared to have her wits about her in 2001. Similarly, Reed Durham testified
that she appeared to have her wits about her in 1998. Reed Durham also testified that
Ms. Link thought “very highly” of and trusted Mr. Layne. Ryan Phillips testified that he
lived near Ms. Link and began doing odd jobs for her about once a week starting in 1997.
Mr. Phillips testified that he never heard Ms. Link mention Mr. Layne in the eight or nine
years he worked for her, although she spoke often about Ms. Durham, who he knew from
church. He testified that Ms. Link appeared to be in her right mind, although she seemed
“elderly.” He explained that Ms. Link was trusting and that someone probably could
have taken advantage of her. Fred Newcom, Carlynn Newcom’s husband, testified that
Mr. Layne told him in 2005 that he did not know anything about Ms. Link’s finances. He
testified that, in a later conversation, Mr. Layne told him that he had stopped visiting Ms.
Link in the nursing home.

        The Contestants also presented testimony of Mr. Layne. Mr. Layne agreed that
Ms. Link was very close with Ms. Durham, but testified that he grew close with Ms. Link
in her later years. He admitted, however, that his only evidence of their relationship was
                                           -6-
her 1996 power of attorney and her 1998 will. Mr. Layne was questioned at length
regarding his failure to produce various documents that were presumably in Ms. Link’s
possession during her lifetime. Mr. Layne acknowledged that he did not know what
happened to Ms. Link’s driver’s license, marriage license, or credit card receipts. He
testified that Ms. Link had drawers full of check stubs, bank statements, and tax returns
dating back to the 1940s and explained that he threw away numerous documents and
other items when he was preparing Ms. Link’s house to be sold. Nevertheless, he
maintained that he did not throw away anything he considered to be important and did
not destroy any documents in anticipation of the litigation. Mr. Layne testified that Ms.
Link told him what would be in her 1998 will before she met with Mr. Kelly about it. He
testified that he drove her to Mr. Kelly’s office and waited in the lobby while she met
with him. He acknowledged that he could not produce any documentation showing who
paid Mr. Kelly to draft Ms. Link’s 1998 will but explained that Ms. Link likely had
because she handled her own transactions at the time. Mr. Layne acknowledged that he
had been friends with Mr. Kelly for more than 40 years. He testified that the two had
been on fishing trips together in the past but maintained that they did not take any trips
together in the 10 years prior to 1998. He also testified that Mr. Kelly had served as his
personal attorney in various matters through the years. Mr. Layne testified that he visited
Ms. Link every week when she was in the nursing home and felt obligated to take greater
care of her knowing the contents of her 1998 will. When asked why he never told anyone
about Ms. Link’s 1998 will, Mr. Layne answered that it was not his information to tell.

        After the Contestants concluded the presentation of their case-in-chief, Mr. Layne
presented additional witness testimony. Ronald Case testified that he was the director of
Ms. Link’s nursing home and served as her chaplain while she was there. Mr. Case
testified that he saw Mr. Layne at the nursing home every week but that he did not
recognize the Contestants. Joyce Ann Parker testified that she was Ms. Link’s niece and
a first cousin of Mr. Layne and the Contestants. Ms. Parker testified that she had
frequently visited Ms. Link’s nursing home to see her mother-in-law and saw Mr. Layne
and his wife there many times. She testified that she saw Carlynn Newcom there once
but stated that she never saw Don or Reed Durham. Gene Rountree testified that he was
employed by Ms. Link’s nursing home and that he saw Mr. Layne visiting her there
“periodically.” Mr. Rountree testified that he did not recognize any of the Contestants.

        At the end of the second day of trial, the trial court excused the jury and held an
evidentiary hearing on the admissibility of the photocopied handwritten notes purportedly
written by Mr. Kelly during his meeting with Ms. Link. During the hearing, Ms. Murphy
identified Mr. Kelly’s handwriting in the notes and testified that they were typical of the
notes Mr. Kelly would write when meeting with a client. She explained that, at some
point, Mr. Kelly’s files were scanned onto a computer and the original copies were
destroyed. Ms. Kelly also identified Mr. Kelly’s handwriting in the notes. She explained
                                           -7-
that, when Mr. Kelly closed his law office, she scanned all of his files onto a computer
and shredded the originals. After hearing their testimony and considering the arguments
of the parties, the trial court ruled that the handwritten notes were to be admitted as
evidence. When the jury returned the following morning, Ms. Kelly authenticated the
handwritten notes and they were admitted into evidence.

        After the conclusion of proof and closing arguments, the trial court read its
instructions to the jury. The judge instructed the jury on the burdens applicable to each
of the grounds listed in the Contestants’ amended complaint for contesting Ms. Link’s
1998 will: forgery, lack of testamentary capacity, lack of testamentary intent, undue
influence, and fraud. The jury was given a verdict form requiring it to answer certain
questions related to each of the grounds instructed by the judge and was excused to
deliberate at 1:00 pm. At 4:39 pm, the judge informed the parties’ attorneys that he had
received word from the bailiff that the jury did not expect to reach a verdict that night and
that several of the jurors would be unable to return the following day. The judge
explained that he could declare a mistrial but suggested that he could give the jury “a
little dynamite charge” to emphasize the importance of their efforts. The attorneys did
not object to the court giving the jury a supplemental instruction, and the jury was
brought back into the courtroom. In its supplemental instruction, the judge noted the time
and money each side had invested in trying the case and encouraged the jurors to be
willing to reexamine their own views. Sometime thereafter, the parties’ attorneys
notified the judge that they would accept a majority verdict, but the judge encouraged
them to give the jury more time to reach a unanimous verdict. 3 At 6:32 pm, the jury
announced its unanimous verdict upholding Ms. Link’s 1998 will. Specifically, the jury
found that (1) Ms. Link had the testamentary capacity to execute the contested will, (2)
Ms. Link had the testamentary intent to execute the contested will, (3) the contested will
was not forged, (4) the contested will was not the product of undue influence, (5) the
contested will was not the product of fraud, and (6) the document executed on March 11,
1998 was Ms. Link’s valid, executed last will and testament.

        On August 21, 2015, the Contestants filed a post-judgment motion for a judgment
notwithstanding the verdict or new trial. In the motion, they argued that the trial court
should enter a judgment notwithstanding the verdict because no material evidence was
presented at trial to support the jury’s verdict. Alternatively, they argued that they were
entitled to a new trial because the jury’s verdict was contrary to the weight of the
evidence, contrary to law, and the result of errors committed by the trial court. They

3
  Although this discussion took place off the record, the trial judge recounted it on the record during a
subsequent hearing on the Contestants’ post-judgment motion. Neither party disputed the accuracy of the
judge’s account of the conversation during the post-judgment hearing, and neither party disputes it on
appeal.
                                                  -8-
proceeded to list 43 alleged errors made by the trial court that they argued impaired their
right to a fair trial and resulted in an erroneous verdict.

        The trial court held a hearing on the Contestants’ post-judgment motion on
October 6, 2015. Although the judge declined to address each of the 43 errors listed in
their motion, he was particularly concerned with one of them–“38. The trial judge
engaged in ex parte communications with the jury.” He stated that he had, in fact,
communicated with the jury off the record and outside the presence of the attorneys. He
explained that, in response to a report of possible juror intimidation, he reiterated his
earlier jury instructions by encouraging the juror to consider the opinions of others. He
further explained that, immediately after the incident, he disclosed it to the attorneys for
both parties and neither party objected. He stated that, although he regretted not putting
the exchange on the record, he did not think it warranted a new trial. The trial court
entered an order denying the Contestants’ post-judgment motion on November 9, 2015.
The Contestants timely filed an appeal to this Court on November 30, 2015.

                                         II. ISSUES

       The Contestants raise issues for our review, which we restate as follows:

       1. Whether the trial court committed reversible error in denying the
       Contestants’ motions for partial summary judgment and judgment
       notwithstanding the verdict.

       2. Whether the trial court abused its discretion in controlling the course of
       trial and witness examination.

       3. Whether the trial court abused its discretion in its evidentiary rulings.

       4. Whether the trial court committed reversible error in delivering
       inaccurate and incomplete jury instructions and in using the verdict form
       that was given to the jury.

       5. Whether the trial court committed reversible error in delivering its
       supplemental instructions and in engaging in ex parte communications with
       the jury.

       6. Whether the trial court committed reversible error in performing its
       duty as the thirteenth juror.


                                            -9-
       7. Whether there is material evidence in the record to support the jury’s
       verdict.

                                III. STANDARD OF REVIEW

       With the constitutional underpinning of the right to a jury trial framing the
appellate process, Tennessee Rule of Appellate Procedure 13(d) narrowly limits the role
of appellate courts in reviewing the factual findings of a jury. Duran v. Hyundai Motor
Am., Inc., 271 S.W.3d 178, 204 (Tenn. Ct. App. 2013). When the factual foundation of a
jury verdict is challenged on appeal, it will only be set aside when there is no material
evidence to support it. Tenn. R. App. P. 13(d). Nevertheless, we review the trial court’s
conclusions of law de novo with no presumption of correctness. See Elchlepp v. Hatfield,
294 S.W.3d 146, 149 (Tenn. Ct. App. 2008).

        The Contestants challenge a number of the trial court’s discretionary decisions.
On appeal, a trial court’s discretionary decisions are analyzed using the abuse of
discretion standard of review. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.
2010). In reviewing a trial court’s discretionary decisions, the “appellate courts should
begin with the presumption that the decision is correct and should review the evidence in
the light most favorable to the decision.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709
(Tenn. Ct. App. 1999). The decision “will be upheld so long as reasonable minds can
disagree as to propriety of the decision made.” Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001). That deferential standard reflects awareness that the decision being
reviewed involved a choice among several acceptable alternatives and therefore envisions
a less rigorous review of the decision and a decreased likelihood that it will be reversed
on appeal. Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010). A trial court’s
decision will only be reversed under an abuse of discretion standard “when it causes an
injustice to the party challenging the decision by (1) applying an incorrect legal standard,
(2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly
erroneous assessment of the evidence.” Lee Med., Inc., 312 S.W.3d at 524.

                                      IV. DISCUSSION

       When a testator dies, the person nominated by the testator’s will to serve as
executor of the estate has a duty to institute legal proceedings to probate the will. In re
Estate of Boote, 198 S.W.3d 699, 711 (Tenn. Ct. App. 2005). Thereafter, any person who
claims an interest in the testator’s estate has a right to contest the validity of the will and
to demand a jury trial on disputed questions of fact. Id. at 713 (citing Tenn. Code Ann. §
32-4-107(a)). The primary issue in a will contest is generally whether the paper writing
offered for probate is the testator’s valid last will and testament. Id.

                                            - 10 -
        Due to their unique nature, courts use presumptions to shift the burden of proof in
will contest proceedings. Initially, the proponent of the contested will has the burden of
presenting proof that the will was executed in compliance with all of the formalities of
law. In re Estate of Eden, 99 S.W.3d 82, 88 (Tenn. Ct. App. 1995). When the contested
will is a written document with subscribing witnesses, it must be proved by all living
witnesses, “if to be found.” Tenn. Code Ann. § 32-4-105 (2015). Once the proponent
presents proof showing that the will was executed in compliance with the legal
formalities, the will is presumed to be valid, and the burden shifts to the contestant to
demonstrate that the will is invalid for some reason. In re Estate of Eden, 99 S.W.3d at
88.
        While the Contestants challenged the validity of Ms. Link’s 1998 will on several
grounds at trial, the one most pertinent to the issues they raise on appeal is undue
influence. Undue influence is characterized as coercive conduct aimed at destroying the
testator’s free agency to such an extent that the stronger will of the proponent overcame
the will of the testator. See Keasler v. Estate of Keasler, 973 S.W.2d 213, 220 (Tenn. Ct.
App. 1997) (quoting Hammond v. Union Planters Nat’l Bank, 222 S.W.2d 377, 383-84
(Tenn. 1949)). Because direct evidence of undue influence is rare, the contestants in
most cases must establish undue influence by proving the existence of suspicious
circumstances that support a conclusion that the will’s execution was not the product of
the testator’s free and independent act. Kelley v. Johns, 96 S.W.3d 189, 195 (Tenn. Ct.
App. 2002). The suspicious circumstances most frequently relied on in will contests are
(1) a confidential relationship between the testator and the beneficiary, (2) the testator’s
poor physical or mental health, and (3) the beneficiary’s involvement in the procurement
of the will.4 Id. at 196. Although there is no prescribed type or number of suspicious
circumstances necessary to invalidate a will, the doctrine of undue influence is only
applicable in Tennessee when it is shown that the person alleged to have exercised undue
influence on the testator was in a confidential relationship with the testator. 5 In re Estate
of Brevard, 213 S.W.3d 298, 302 (Tenn. Ct. App. 2006).

       A confidential relationship is any relationship that gives one person dominion and
control over another. Kelley, 96 S.W.3d at 197. Confidential relationships can assume a
variety of forms, and the courts have generally been reluctant to define what constitutes a
confidential relationship. Id. Nevertheless, courts have identified several types of
relationships that are confidential as a matter of law. Id. In Mitchell v. Smith, 779

4
   Other recognized suspicious circumstances are (1) secrecy concerning the will’s existence, (2) the
testator’s advanced age, (3) the lack of independent advice in procuring the will, (4) the testator’s
illiteracy or blindness, (5) the unjust or unnatural terms of the will, (6) the testator being in an emotionally
distraught state, (7) discrepancies between the will and testator’s expressed intentions, and (8) fraud or
duress directed toward the testator. Kelley, 96 S.W.3d at 196.
5
  Such a confidential relationship need not involve the beneficiary, as undue influence may be exercised
by someone other than a beneficiary. DeLapp v. Pratt, 152 S.W.3d 530, 542 (Tenn. Ct. App. 2004).
                                                    - 11 -
S.W.2d 384, 388 (Tenn. Ct. App. 1989), this Court held that a person authorized to act on
behalf of another by virtue of an unrestricted power of attorney has a confidential
relationship as a matter of law with the person who executed the power of attorney.
Initially, the Tennessee Supreme Court expressed its agreement with that rule in Matlock
v. Simpson, 302 S.W.2d 384, 386 (Tenn. 1995). Later, however, in Childress v. Currie,
74 S.W.3d 324, 329 (Tenn. 2002), the Tennessee Supreme Court clarified that an
unexercised power of attorney does not create a confidential relationship. Thus,
Tennessee case law currently provides that a confidential relationship arises as a matter
of law when an unrestricted power of attorney is granted in favor of the dominant party
and is, in fact, exercised by the dominant party. 6 See, e.g., Mitchell v. Morris, No.
E2015-01353-COA-R3-CV, 2016 WL 890212, at *6 (Tenn. Ct. App. Jan. 6, 2016).

       A confidential relationship followed by a transaction in which the dominant party
receives a benefit from the other party creates a presumption of undue influence. In re
Estate of Price, 273 S.W.3d 113, 125 (Tenn. Ct. App. 2008). The proponent may rebut
the presumption by presenting clear and convincing evidence of the fairness of the
transaction. Id. As it is used in this context, however, the term “fairness” is not meant to
suggest an inquiry into whether the person benefitting from the will deserved what the
will provided. Matter of Estate of Depriest, 733 S.W.2d 74, 79 (Tenn. Ct. App. 1986).
“A person may make a legally effective disposition of his estate which reasonable men
would regard as unfair.” In re Reddaway’s Estate, 329 P.2d 886, 892 (Or. 1958).
Instead, the inquiry is limited to a determination of the testator’s capacity to make a will
and whether the provisions of the will were arrived at through the testator’s free agency.
Id. Oftentimes, the fairness of a contested will is demonstrated by presenting evidence
that the testator received independent advice in preparing the will. In re Estate of
Maddox, 60 S.W.3d 84, 89 (Tenn. Ct. App. 2001).




6
  In In re Conservatorship of Groves, 109 S.W.3d 317, 352 (Tenn. Ct. App. 2003), this Court cited
Childress in stating, “[a] general power of attorney is not necessarily evidence of a confidential
relationship as long as the person receiving the power of attorney was not active in its procurement and
has not exercised it.” The Contestants interpret that statement as providing that a general power of
attorney, even if it is not exercised, creates a confidential relationship as a matter of law if the attorney-in-
fact was active in procuring it. However, this Court’s cases citing Groves have consistently interpreted it
to mean that a confidential relationship exists as a matter of law when the attorney-in-fact was active in
procuring a general power of attorney and has exercised it. See Malek v. Gunter, No. M2009-00059-
COA-R3-CV, 2009 WL 4878613, at *6 (Tenn. Ct. App. Dec. 16, 2009); Cataldo v. Stanley, No. M2008-
02430-COA-R3-CV, 2009 WL 3074620, at *6 (Tenn. Ct. App. Sept. 25, 2009); Dickson v. Long, No.
M2008-00279-COA-R3-CV, 2009 WL 961784, at *9 (Tenn. Ct. App. Apr. 8, 2009); Waller v. Evans, No.
M2008-00312-COA-R3-CV, 2009 WL 723519, at *8 (Tenn. Ct. App. Mar. 17, 2009).
                                                     - 12 -
         A. Summary Judgment and Judgment Notwithstanding the Verdict

        The Contestants argue that the trial court erred in denying their pre-trial motion for
summary judgment. Summary judgment is a procedural mechanism for avoiding the
time and expense of trial by concluding cases that can be resolved on dispositive legal
issues alone. See Messer Grieshiem Indus. v. Cryotech of Kingsport, Inc., 45 S.W.3d
588, 608 (Tenn. Ct. App. 2001). When a trial court denies a motion for summary
judgment based on the existence of disputed material facts, the denial is not appealable
after a trial on the merits. In re Estate of Blackburn, 253 S.W.3d 603, 611 (Tenn. Ct.
App. 2007). In this case, the trial court denied the Contestants’ summary judgment
motion based on the existence of disputed material facts, and the case proceeded to a full
jury trial on the merits. As such, the trial court’s denial of summary judgment is not
reviewable on appeal, and we decline to address it.

       The Contestants also argue that the trial court erred in denying their post-judgment
motion for a judgment notwithstanding the verdict. Although the term is not used in the
rule, Tennessee Rule of Civil Procedure 50.02 provides a procedure for what is
commonly referred to as a judgment notwithstanding the verdict. Robert Banks, Jr. &
June F. Entman, Tennessee Civil Procedure § 12-1(c) (4th ed. 2015). Technically, the
rule permits a trial judge to take a motion for a directed verdict under advisement without
granting or denying it at trial and allows the moving party to request a ruling on the
motion after the jury has returned its verdict. Id. As such, a party seeking a judgment
notwithstanding the verdict based on the legal insufficiency of the opposing party’s
evidence must have moved for a directed verdict before the case was submitted to the
jury. Tenn. R. Civ. P. 50.02; Potter v. Tucker, 688 S.W.2d 833, 835 (Tenn. Ct. App.
1985). In this case, the Contestants did not move for a directed verdict before the case
was submitted to the jury. The trial court’s denial of their motion for a judgment
notwithstanding the verdict was therefore appropriate.

                         B. Errors Affecting the Jury’s Verdict

       The Contestants raise a number of issues related to the trial court’s control over
the course of the trial and witness examination. They argue that, taken together, those
errors contributed to juror confusion and affected the jury’s verdict. Trial judges have
broad discretion in controlling the course and conduct of a trial. Meals ex rel. Meals v.
Ford Motor Co., 417 S.W.3d 414, 420 n.7 (Tenn. Ct. App. 2013). That discretion
necessarily extends to their determinations regarding the scope and manner of witness
examination. Id. As such, we review these issues using the deferential abuse of
discretion standard. See Lee Med., Inc., 312 S.W.3d at 524.


                                            - 13 -
        The Contestants argue that the trial court erred in failing to deem undisputed facts
established at trial pursuant to Tennessee Rule of Civil Procedure 56.05. Rule 56.05
provides that upon denial of a summary judgment motion, the trial court “shall if
practicable” ascertain what material facts are undisputed and deem them established at
trial. Tenn. R. Civ. P. 56.05. Although the Contestants argue that the trial court’s failure
to deem undisputed material facts established at trial contributed to juror confusion and
affected the jury’s verdict, they do not indicate what specific facts the trial court should
have deemed established. Rather, they make ambiguous references to “undisputed facts
showing that Appellee was active in procuring the power of attorney,” and “undisputed
facts establishing dominion and control.” Additionally, they do not explain how the trial
court’s failure to designate these unspecified, undisputed facts led to juror confusion. We
find no abuse of discretion on this issue.

        The Contestants argue that the trial court further contributed to juror confusion and
affected the jury’s verdict when it “impeded [the Contestants’] examination of witnesses
and ignored abuse by [Mr. Layne’s] counsel.” In support of their argument, they cite,
largely without explanation, a number of rulings, statements, and other occurrences from
the trial. For example, they cite the trial judge’s decision to rule on the admissibility of
Mr. Kelly’s handwritten notes after both parties presented their cases-in-chief, but they
do not explain how it was improper or prejudicial in light of the fact that the notes were
only relevant as rebuttal evidence. Likewise, they cite the trial judge’s decision to let Ms.
Kelly identify Mr. Kelly’s signature on Ms. Link’s 1998 will during her initial testimony
but do not explain how it was prejudicial in light of the fact that Ms. Murphy and Ms.
Steele also identified Mr. Kelly’s signature on the will. The Contestants cite instances in
which the trial judge instructed their attorneys, in front of the jury, not to argue with a
witness, not to display documents before introducing them into evidence, and not to
summarize witness testimony, but they do not assert that those instructions were
improper. They cite an instance in which the judge admonished one of their attorneys for
accusing a witness of lying. They fail to mention, however, that the occurrence took
place outside of the jury’s presence. They cite two of their own objections that were
overruled, but they do not explain that the rulings were improper or prejudicial. They
also cite 27 of Mr. Layne’s objections–16 that were sustained, 7 that were overruled, and
4 that were not ruled on–with little or no explanation of their significance. They cite four
leading questions asked by Mr. Layne’s attorney at trial but decline to mention that they
did not object to three of them and that Mr. Layne’s attorney rephrased the fourth. They
point out that photocopies, rather than originals, of certain documents were admitted into
evidence without explaining the relevance of that fact.

       While it appears that the Contestants have taken inventory of every minor
disruption and distraction that occurred throughout the trial, we are not inclined to infer
their significance on our own. The Contestants have not demonstrated that the trial
                                           - 14 -
court’s control over the course of the trial and witness examination caused an injustice to
them. Thus, having perhaps given the foregoing issues more attention than they deserve,
we conclude that they do not, separately or collectively, warrant reversal.

                                      C. Evidentiary Rulings

        The Contestants also challenge a number of the trial court’s evidentiary rulings.
Decisions regarding the admissibility of evidence are within the sound discretion of the
trial court and are therefore reviewed using the abuse of discretion standard. Shipley v.
Williams, 350 S.W.3d 527, 552 (Tenn. 2011). Moreover, an erroneous evidentiary ruling
does not require reversal unless it affects a substantial right of the complaining party.
Brandy Hills Estates, LLC v. Reeves, 237 S.W.3d 307, 318 (Tenn. Ct. App. 2006).

Ms. Kelly & the Handwritten Notes

        The Contestants argue that the trial court erred in allowing Ms. Kelly to testify and
in admitting Mr. Kelly’s handwritten notes because they were not timely disclosed in
compliance with the trial court’s scheduling order and Rule 11.01 of the Twelfth Judicial
District Local Rules.7 We agree that Mr. Layne’s disclosure of Ms. Kelly and the
handwritten notes on the eve of trial violated the time limits set forth in the scheduling
order and local rules. However, trial judges have the discretion to extend the application
of such time limits. See Tenn. R. Civ. P. 6.02; see also Williams v. Baptist Mem’l Hosp.,
193 S.W.3d 545, 551 (Tenn. 2006) (“[T]he terms of Rule 6.02, dictate that whether to
grant an enlargement of time is left to the discretion of the trial court.”). Mr. Layne’s
attorney represented to the trial court that he contacted opposing counsel immediately
after Ms. Kelly told him the severity of Mr. Kelly’s condition and of the handwritten
notes. Nothing in the record suggests that those representations were not true and Ms.
Kelly corroborated them in her testimony. Because Tennessee law requires contested
wills to be proved by all available living witnesses, Mr. Layne had to present some
satisfactory evidence that Mr. Kelly was not available or able to testify or lose the case on
a technicality. To avoid that harsh result, the trial court allowed Ms. Kelly to testify
initially regarding Mr. Kelly’s availability. In our view, the only harm that decision
caused the Contestants was that it required them to resolve the case on the merits. Such a
decision can hardly be considered an abuse of discretion. The trial court reserved ruling
on the admissibility of Mr. Kelly’s handwritten notes until after an evidentiary hearing.
The Contestants suggest that the late disclosure of the handwritten notes casts doubt on
their authenticity but provide no additional evidentiary support for that assertion. Ms.
Kelly and Ms. Murphy both identified the handwriting in the notes as Mr. Kelly’s

7
 Rule 11.01 of the Twelfth Judicial District Local Rules requires that witnesses and exhibits be disclosed
72 hours prior to trial.
                                                 - 15 -
handwriting. Ms. Kelly testified that Mr. Kelly suffered a stroke in 2011 that severely
affected his ability to write and her testimony was subjected to cross examination by
Contestants’ counsel. While it is possible that the notes were fabricated on the eve of
trial, the probative evidence in the record suggests that they are authentic. In any event,
neither party attempted to depose Mr. Kelly or obtain a subpoena for his files despite the
fact that they both anticipated that he would be called as a witness. Had they done so, the
severity of his condition and the existence of the handwritten notes likely would have
been discovered much earlier. As it happened, the trial court was faced with a decision
between withholding relevant evidence from the jury to Mr. Layne’s detriment or
excusing the untimely disclosure and allowing the jury to consider all of the relevant
evidence. Given the circumstances, we believe that choosing either option would have
been acceptable. When a decision reflects a choice between two acceptable alternatives,
we are not permitted to substitute our judgment for that of the trial court. We therefore
find no abuse of discretion in the trial court’s decision.

Ms. Link’s 1998 Will

         Notwithstanding their argument that Ms. Kelly should not have been allowed to
testify, the Contestants argue that the trial court erred in admitting Ms. Link’s 1998 will
because Ms. Kelly’s testimony failed to establish that Mr. Kelly was not available to
testify.

        Tennessee law requires the proponent of a contested will to present the testimony
of all living witnesses to the will’s execution or demonstrate that they are not available.
Swindoll v. Jones, 292 S.W.2d 531, 541 (Tenn. Ct. App. 1954). It is the trial judge’s
function to determine whether the proponent of the will has complied with that
requirement. Id. A trial court’s decision regarding the availability of a living witness to a
contested will is discretionary. Id.

        The Contestants argue that Ms. Kelly’s testimony regarding Mr. Kelly’s ability to
communicate was inconsistent and therefore insufficient to establish that he was not
available. They cite various portions of Ms. Kelly’s testimony in support of that
assertion. For example, during direct examination Ms. Kelly stated that Mr. Kelly’s
“ability to produce the words, even in writing the ability to produce the words is not
there.” Later, however, she testified that “I know pretty much most of the time what he
wanted to say,” and that “now he has to write with his left hand.” While these statements
may seem inconsistent standing on their own, they are not in the full context of Ms.
Kelly’s testimony. Ms. Kelly testified that Mr. Kelly has the ability to form short words,
such as “yes” and “no,” but cannot use them consistently to communicate what he
actually means. For example, when asked if he would like a drink, he might respond by
saying “yes,” but upon receiving the drink, might reject it. She testified that Mr. Kelly
                                           - 16 -
struggled similarly with written communication. She explained that the stroke left Mr.
Kelly, who had been right-handed previously, paralyzed on his right side. She later
testified that he had improved signing his name with his left hand but usually could not
write complete words. Read as a whole, Ms. Kelly’s testimony reflects, quite clearly,
that Mr. Kelly cannot consistently produce the words he intends to produce. Particularly
as it relates to testifying in front of a jury, a person’s ability to produce words is
essentially useless if their words do not convey the intended information.

        The Contestants also argue that, even if Ms. Kelly’s testimony sufficiently
established that Mr. Kelly could not communicate verbally or in writing, it did not
establish that he was unable to comprehend questions posed to him. They assert that Mr.
Kelly could have therefore been physically present in the courtroom and answered
questions posed to him using physical gestures. This argument requires little discussion.
To require a partially paralyzed individual with severely deficient motor skills to appear
in front of a jury for the sole purpose of using physical gestures to confirm the validity of
a document when there is no contravening evidence that the document is invalid and
multiple other individuals have confirmed its validity would be an exercise in futility and
perhaps even abuse. We decline to countenance such an exercise. The trial court, having
heard the testimony and observed the witnesses, found that Mr. Kelly was not available to
testify, and we are satisfied that the record supports its determination. We therefore
conclude that the trial court did not err in admitting Ms. Link’s 1998 will.

Other Evidentiary Arguments

        The Contestants raise numerous other challenges to the trial court’s evidentiary
rulings. We will address each in turn beginning with their assertion that the trial court
erred in allowing evidence of Ms. Link’s nursing home expenses and the value of her
estate to be admitted at trial. The record reflects that Mr. Layne testified regarding the
cost of Ms. Link’s nursing home expenses and the Contestants did not object to it. That
issue is therefore waived. See Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006). In
their brief, the Contestants state, “the value of Ms. Link’s estate was undisputed and
should not have been reduced to any amount, so this evidence and argument misled the
jury.” The record reflects, however, that the Contestants’ attorney asked Reed Durham,
“And did Ms. Link die with a good bit of money for Jasper, Tennessee standards?”
Later, the Contestants’ attorney asked Mr. Layne, “How much money did Ms. Link die
with?” and Mr. Layne’s attorney objected. Indeed, the only statement to the jury
regarding the specific value of Ms. Link’s estate was that of the Contestants’ attorney in
closing arguments that, “[Mr. Layne is] getting everything but $10,000 of a $750,000
estate.” This argument has no merit.


                                           - 17 -
        Next, the Contestants argue that the trial court erred in excluding evidence related
to the estate of Nora Rogers. Ms. Rogers was another one of Mr. Layne’s aunts. During
a deposition, Mr. Layne acknowledged that he was the sole beneficiary of Ms. Rogers’s
will. Before trial, Mr. Layne filed a motion to exclude evidence related to Ms. Rogers
and her will. The trial court denied the motion and ordered Mr. Layne to bring Ms.
Rogers’s will to trial if it was still in existence. At trial, Mr. Layne testified that he could
not find the will and was sure that it had been destroyed. The trial judge then instructed
the Contestants’ attorneys not to question Mr. Layne any further about the disposition of
Ms. Rogers’s estate. The Contestants argue that they should have been allowed to
continue questioning Mr. Layne about Ms. Rogers to demonstrate his modus operandi.
Standing alone, however, the fact that Mr. Layne was the sole beneficiary of another
relative’s will has little relevance in this case. We find no abuse of discretion on this
issue.

       The Contestants also argue that the trial court erred in excluding evidence that Ms.
Link transferred silverware to Mr. Layne during her lifetime. During a deposition, Mr.
Layne acknowledged that Ms. Link gave him a set of silverware sometime between 1998
and 2007. Mr. Layne filed a motion to exclude evidence of the transfer, as it would not
be relevant in determining the validity of Ms. Link’s 1998 will. The trial court granted
the motion. The Contestants argue that the trial court erred in excluding evidence of the
silverware transfer because it occurred after Ms. Link executed a power of attorney in
favor of Mr. Layne giving rise to a presumption that it was procured through undue
influence. This argument has no merit. The Contestants’ amended complaint contests
only the validity of Ms. Link’s 1998 will; it does not contest the silverware transfer. As
such, we conclude that the trial court did not abuse its discretion in excluding that
evidence.

       Finally, the Contestants argue that the trial court erred in excluding evidence of an
inappropriate personal relationship between two witnesses to the execution of Ms. Link’s
1998 will. At trial, the Contestants’ attorney attempted to elicit testimony on that subject.
Mr. Layne’s attorney objected, and the judge ruled that the evidence was not relevant.
Nevertheless, the judge permitted the Contestants’ attorney to continue the line of
questioning outside the jury’s presence. The Contestants argue that the evidence should
have been presented to the jury because subscribing witnesses to a will’s execution who
are engaged in an inappropriate relationship might be willing to compromise their usual
execution procedures. Even if that were true, however, the testimony elicited outside the
jury’s presence reflects that the relationship in question did not begin until October 1998–
months after Ms. Link’s will was executed. We therefore conclude that the trial court did
not abuse its discretion in excluding the evidence.


                                             - 18 -
                          D. Jury Instructions & Verdict Form

       The Contestants raise a number of challenges to the trial court’s jury instructions
and verdict form. Specifically, they contend that trial court erred by (1) rejecting their
requested jury instructions, (2) delivering an inaccurate instruction on forgery, (3)
delivering an inaccurate instruction on undue influence, (4) failing to instruct the jury
regarding missing evidence, (5) calling the jury’s attention to inadmissible evidence, and
(6) using a general verdict form. We will address each of these issues in turn.

       Will contests are often surrounded by confusion and uncertainty, and the trial
court’s instructions are the only proper source of legal principles to guide the jury in their
deliberations. In re Estate of Eden, 99 S.W.3d at 91. Although we give the trial courts
leeway regarding the substance of their instructions, the instructions should be
substantially accurate statements of the law applicable to the issues the jury must decide.
Id. Determining the scope and substance of the jury instructions requires consideration of
the parties’ theories, the evidence presented, and the applicable law. Id. The instructions
are not measured against a standard of perfection, as long as they fairly define the legal
issues involved in the case and do not mislead the jury. Brandy Hills Estate, LLC, 237
S.W.3d at 319. When reviewing a trial court’s jury instructions on appeal, we review the
entire charge, just as the jury would, in order to determine whether the trial judge
committed a prejudicial error. Id. We may consider the jury instructions in conjunction
with the verdict form in determining whether the issues were presented to the jury in a
clear and fair manner. Payne v. CSX Tansp., Inc., 467 S.W.3d 413, 446 (Tenn. 2015).

Requested Jury Instructions

       The Contestants argue that the trial court erred in rejecting their requested jury
instructions because the parties could not agree to jury instructions before trial. When a
special instruction is requested that is not included in the general charge and is supported
by the evidence introduced at trial, the trial court should give the instruction. Johnson v.
Tenn. Farmers Mut. Ins. Co., 205 S.W.3d 365, 372 (Tenn. 2006). However, reversal is
only appropriate when the improper denial of requested instructions has prejudiced the
rights of the requesting party. Id. In this case, both parties submitted proposed jury
instructions to the trial court prior to trial. During a pre-trial conference, the trial judge
noted “a significant amount of difference” between the parties’ proposed instructions and
directed the attorneys to work together to come up with one set of instructions. Later,
when the attorneys represented to the judge that they had not been able to reach an
agreement, the judge indicated that he would instruct the jury using the Tennessee Pattern
Jury Instructions. We discern no reversible error in the trial court’s decision. As we
explain in greater detail below, the trial court’s jury instructions were substantially

                                            - 19 -
accurate statements of the applicable law. We therefore discern no prejudice in the trial
court’s decision.

Forgery Instruction

       The Contestants argue that the trial court delivered an inaccurate jury instruction
on forgery. The trial court instructed the jury that the Contestants had the burden of
establishing that the signatures or markings on Ms. Link’s 1998 will were forgeries. The
Contestants argue that the trial court should have instructed the jury on the manner in
which evidence that suggests a contested will has been altered shifts the burden of proof
to the will’s proponent to demonstrate that the will is valid. As we explained above,
proof of due execution generally creates a presumption that a contested will is valid, and
the burden shifts to the contestant to demonstrate that the will is invalid. In re Estate of
Eden, 99 S.W.3d at 88. In Haynes v. Mullins, 209 S.W.2d 278, 279 (Tenn. Ct. App.
1947), however, this Court held that when “the physical condition of the paper offered for
probate is such as to excite suspicion,” the burden remains on the proponent to dispel the
suspicious circumstances surrounding its execution. In Haynes, there was evidence that
the names of the subscribing witnesses were added to the contested will after it was
submitted to probate and that the testator’s signature and the name of notary had been
traced. Id. at 279-80. As such, the court held that the burden of proof remained on the
will’s proponent to remove the suspicion of forgery by showing that the alterations were
not material or were made in good faith. Id. at 279. The Contestants assert that multiple
sets of staple holes in Ms. Link’s 1998 will, a misspelling of Ms. Link’s name in the
attached affidavit, and the fact that Article II of the will has a subsection “A” and no
subsection “B” are similar indicators of forgery such that the burden of proof remained
on Mr. Layne to remove the suspicion that Ms. Link’s 1998 will was forged. We
disagree. None of those features “excites suspicion” that the will was forged or altered.
Accordingly, we are satisfied that the trial court’s jury instruction on forgery was
accurate.

Undue Influence Instruction

       The Contestants argue that the trial court delivered an inaccurate jury instruction
on undue influence. The trial court’s jury instruction on undue influence largely tracked
Tennessee Pattern Jury Instruction–Civil 11.39 (“TPI 11.39”). While the Tennessee
Pattern Jury Instructions are a valuable resource for trial courts, they do not have the
force of law and are subject to objection and reversal like all other jury instructions. See
Matlock, 902 S.W.2d at 386 (rejecting Tennessee Pattern Jury Instruction–Civil 11.60).
The Contestants submit that the trial court’s jury instruction on undue influence was
inconsistent with Tennessee law for several reasons.

                                           - 20 -
        First, the Contestants argue that the trial court’s instruction was inaccurate because
it misstated the evidence required to create a presumption of undue influence. Tennessee
courts have held that “a presumption of undue influence arises when there is a
confidential relationship followed by a transaction in which the dominant party receives a
benefit from the other party.” See, e.g., In re Estate of Price, 273 S.W.3d at 125. Here,
the trial court instructed the jury a presumption of undue influence would arise if they
found that Mr. Layne had a confidential relationship with Ms. Link, “was active in
causing the will to be made, and unduly profited from it.”8 The Contestants argue that the
trial court’s instruction placed an excessively high burden on them in establishing a
presumption of undue influence. We disagree. Requiring the party contesting a will to
show that the proponent was “active in causing the will to be made” in order to create a
presumption of undue influence is a substantially accurate statement of the law. As we
explained above, undue influence, at its core, contemplates some coercive conduct aimed
at destroying the testator’s free agency to such an extent that the stronger will of the
proponent overcomes the will of the testator. Keasler, 973 S.W.2d at 220. It is therefore
obvious that the proponent must have played a role in causing the will to be made in
order for a presumption that they procured it through undue influence to arise. Were that
not the case, undue influence would be presumed anytime a testator devised property to a
person with whom they shared a confidential relationship, even when it was undisputed
that the dominant party was not involved in causing the will to be made. Such a rule
would defy logic and undermine the core definition of undue influence. Likewise,
requiring the party contesting a will to show that the proponent has “unduly profited”
from the will is a substantially accurate statement of the law. There is no meaningful
distinction between the words “profit,” as used by the trial court, and “benefited,” as used
in the cases cited by the Contestants. The trial court’s insertion of the word “unduly”
does little to affect the instruction’s overall meaning. The ultimate issue is, after all,
whether the proponent exerted undue influence over the testator in causing the will to be
made. If a person exercised undue influence to obtain some profit or benefit that was
rightfully due them, there would be little basis for invalidating the transaction.

       Next, the Contestants argue that the trial court’s instruction was inaccurate
because it did not accurately define a confidential relationship that arises as a matter of
law. Specifically, they argue that the trial court’s instruction precluded the jury from
finding a confidential relationship existed between Mr. Layne and Ms. Link unless it
determined that Mr. Layne exercised his power of attorney prior to the execution of Ms.
Link’s 1998 will. As we explained previously, confidential relationships can assume a
variety of forms, and the courts have generally been reluctant to define what constitutes a

8
  The trial court’s instruction differed slightly from TPI 11.39, which provides that a presumption of
undue influence arises when there is a confidential relationship and the proponent “was active in causing
the will to be made and benefitted from it.”
                                                 - 21 -
confidential relationship. Kelley, 96 S.W.3d at 197. Nevertheless, a confidential
relationship may arise as a matter of law when an unrestricted power of attorney is
executed in favor of and exercised by the dominant party prior to the will’s execution.
Childress, 74 S.W.3d at 329. Here, the trial court instructed the jury, “[a] confidential
relationship arises as a matter of law when an unrestricted Power of Attorney is granted
to the dominant party and is in fact exercised and used.” However, the trial court also
stated, “[a] confidential relationship exists whenever the trust and confidence of one
person is placed in the honesty and faithfulness of another.” The instruction was
therefore broad enough that it allowed the jury to consider any number of factors in
determining whether a confidential relationship existed between Mr. Layne and Ms. Link.

       Next, the Contestants argue that the trial court’s instruction was inaccurate
because it did not accurately instruct the jury on the manner in which the proponent of a
will can rebut a presumption of undue influence. They contend that the trial court should
have instructed the jury that a presumption of undue influence may be overcome by clear
and convincing evidence of the transaction’s fairness. As the Contestants point out,
many Tennessee cases provide that the presumption of undue influence may be overcome
by clear and convincing evidence of the fairness of the transaction. See, e.g., In re Estate
of Maddox, 60 S.W.3d at 89. Here, the trial court instructed the jury that the presumption
of undue influence “may be overcome if the proponent proves by clear and convincing
evidence that the making of the will was not the result of undue influence.” The trial
court did not instruct the jury to consider the “fairness of the transaction.” As we alluded
to previously, however, using the term “fairness” in a jury instruction can be problematic
because of the possibility that the jury may associate it with the testator’s moral duty to
provide for certain individuals:

       Without the term being carefully defined the average jury might assume
       that it was being asked to find whether the person benefitting from the will
       deserved what the will provided. That is not the meaning of the term. The
       jury should not be concerned with the question of whether the testator did
       right by those who ordinarily would be the objects of the testator’s bounty.
       The jury’s function is limited to a determination of the testator’s capacity to
       make a will and whether the provisions in the will were arrived at through
       the free agency of the testator rather than through the imposition of
       someone else’s will. If the jury finds in favor of the will on these two
       questions it has found that the transaction was fair.

In re Matter of Depriest, 733 S.W.2d at 79. Given the risk of juror confusion associated
with the term, the trial court’s omission of the word “fairness” from its instruction does
not constitute a reversible error. The trial court’s instruction was a substantially accurate
statement of the law. It was therefore sufficient and will not be disturbed.
                                           - 22 -
Missing Evidence Instruction

       The Contestants argue that the trial court erred in failing to give an instruction on
missing evidence. When a party fails to produce evidence capable of shedding light on a
contested issue, the opposing party may be entitled to an instruction that the jury is
permitted to infer that the missing evidence would have been unfavorable to the party
possessing it. See Richardson v. Miller, 44 S.W.3d 1, 27-28 (Tenn. Ct. App. 2000).

        When the missing evidence is a document, the party seeking a missing evidence
instruction must demonstrate that the document existed and was in its adversary’s
exclusive control and that the party possessing the document could have produced it. Id.
at 28. The Contestants argue that a missing evidence instruction was warranted in this
case because Mr. Layne destroyed numerous documents that were relevant to the
litigation over which he had exclusive control and did so without providing a reasonable
explanation. In support of that assertion, they cite Mr. Layne’s failure to produce Ms.
Link’s genealogy records, master’s thesis, driver’s license, marriage license, recipe
books, vehicle registration, as well as certain bank records and income tax returns that
they assert would have been in Ms. Link’s house or safe deposit box. They also cite his
failure to produce Ms. Rogers’s will. Many of those documents bear little, if any,
relevance to this litigation. Furthermore, there is nothing, beyond the pure speculation of
the Contestants, to suggest that any of the aforementioned documents were ever in Mr.
Layne’s exclusive control during the pendency of these proceedings. The Contestants
also cite Mr. Layne’s failure to produce documents showing who scheduled Ms. Link’s
appointments with Mr. Kelly or who paid Mr. Kelly to draft Ms. Link’s 1998 will.
However, there is no evidence such documents exist or have ever been in Mr. Layne’s
possession. As such, we are satisfied that no missing evidence instruction was necessary
in this case.

Inadmissible Evidence

       The Contestants argue that the trial court’s jury instructions drew attention to
inadmissible evidence. In addition to Mr. Kelly’s handwritten notes, Ms. Kelly also
produced a 1996 will executed by Ms. Link from Mr. Kelly’s files on the eve of trial.
The trial court admitted the handwritten notes but excluded the 1996 will. In an effort to
keep the jury from considering the 1996 will, the trial judge ordered that references to the
1996 will be redacted from the 1998 notes. When trial resumed the following day, the
Contestants’ attorney asked Ms. Kelly whether there was a copy of Ms. Link’s 1989 will
in Mr. Kelly’s files, and she responded, “No. There was a 1996 will in there.” After the
close of proof, Mr. Layne’s attorney requested that the court give a special instruction
regarding the redaction in the handwritten notes. The trial judge informed the jury that
the redaction was made at his direction and they should not think the notes were altered
                                           - 23 -
by one of the parties. We fail to see how that instruction was impermissible or
inappropriate. While the Contestants argue that Ms. Kelly’s reference to the 1996 will
gave them the right to request a curative instruction directing the jury not to consider
inadmissible evidence for any purpose, the record does not reflect that they ever
requested such an instruction. As such, we find no error on the part of the trial court.

Verdict Form

       Finally, the Contestants argue that the trial court’s verdict form caused juror
confusion and affected the jury’s verdict. Trial courts have wide discretion in tailoring
the questions on a verdict form to meet the needs of each unique case. Concrete Spaces,
Inc. v. Sender, 2 S.W.3d 901, 910 (Tenn. Ct. App. 1999). When a party advances
multiple theories of relief, common sense principles should guide the attorneys and the
judge in preparing both the jury instructions and the verdict form. Id. Verdict forms
should use the same terms as those used in the jury instructions and should repeat and
highlight important issues discussed in the instructions. Id. A new trial is warranted
when a verdict form does not address each theory of relief and allow the jury to respond
to them adequately. Id. at 911. Even when a verdict form is defective, the jury’s verdict
will be upheld as long as it sufficiently defines the issues in such a way as to enable the
court to intelligently articulate a judgment. Id. Here, the interrogatories listed on the
verdict form and the jury’s answers to the interrogatories were:

      1. Do you find that Gertrude Bible Link had the testamentary capacity to
         execute the contested will?
           X YES
               NO

      2. Did Gertrude Bible Link have the testamentary intent to execute the
         contested will?
           X YES
                NO

      3. Do you find that the contested will was forged?
              YES
          X NO

      4. Do you find that the contested will was the product of undue influence?
              YES
          X NO

      5. Do you find that the contested will was the product of fraud?
                                          - 24 -
                  YES
            X     NO

       6. Do you find that the instrument executed on March 11, 1998 to be the
          valid, executed Last Will and Testament of Gertrude Bible Link?
            X YES
                  NO

Thus, the jury answered a series of interrogatories or questions related to each of the
theories advanced by the Contestants and a final interrogatory regarding the validity of
Ms. Link’s 1998 will. The jury’s responses are not inconsistent, and there is nothing to
suggest that the verdict form was confusing. The Contestants assert that the trial court’s
instructions did not adequately define terms used in the verdict form, such as
“testamentary capacity” and “testamentary intent.” That assertion is not supported by the
record. The trial court’s instructions used both terms multiple times and explained both
the mental capacity necessary to execute a will and that the contested document must
reflect that it is, in fact, the testator’s will. Based on the foregoing, we do not find error
in the verdict form submitted to the jury by the trial court.

                E. Supplemental Instruction & Ex Parte Communications

        The Contestants argue that the trial judge erred in delivering a “dynamite charge”
that emphasized the time and money the parties invested in trying the case and that it
affected the jury’s verdict. The “dynamite charge” is a supplemental jury instruction that
gained national prominence following the United States Supreme Court’s opinion in
Allen v. United States, 164 U.S. 492, 501-502 (1896), which upheld, in a criminal case, a
jury instruction encouraging dissenting jurors to consider whether their doubt was
reasonable when the majority of jurors were for conviction. In the years that followed,
however, both federal and state courts widely criticized Allen for suggesting that minority
members of a jury should surrender their convictions to the majority. See, e.g., U.S. v.
Fioravanti, 412 F.2d 407, 420 (3d Cir. 1969) (“Hereafter, in this circuit, trial judges are
not to give instructions . . . that direct a juror to distrust his own judgment if he finds a
large majority of the jurors taking a view different from his.”); State v. Randall, 353 P.2d
1054, 1058 (Mont. 1960) (“The inevitable effect of the instruction would be to suggest to
the minority members of the jury that they ought to surrender their own convictions and
follow the majority.”). In 1975, the Tennessee Supreme Court added our state to the list
of jurisdictions rejecting Allen with its opinion in Kersey v. State, 525 S.W.2d 139 (Tenn.
1975) (“We view these charges as being tantamount to a judicially mandated majority
verdict which is impermissible under Tennessee law.”). In doing so, the Kersey Court
also set forth a pattern instruction to be used as part of any supplemental instruction in the

                                            - 25 -
event of an impasse in the deliberations of the jury. Id. at 145. The Court declared that
variations from the following form were impermissible:

             The verdict must represent the considered judgment of each juror.
       In order to return a verdict, it is necessary that each juror agree thereto.
       Your verdict must be unanimous.

              It is your duty, as jurors, to consult with one another and to
       deliberate with a view to reaching an agreement, if you can do so without
       violence to individual judgment. Each of you must decide the case for
       yourself, but do so only after an impartial consideration of the evidence
       with your fellow jurors. In the course of your deliberations, do not hesitate
       to reexamine your own views and change your opinion if convinced it is
       erroneous. But do not surrender your honest conviction as to the weight or
       effect of evidence solely because of the opinion of your fellow jurors, or for
       the mere purpose of returning a verdict.

Id. at 145.9 In 1978, the Tennessee Supreme Court held that its opinion in Kersey
extended to civil cases. Vanderbilt Univ. v. Steely, 566 S.W.2d 853 (Tenn. 1978). In
doing so, the Court was particularly critical of supplemental instructions that place an
emphasis on the time, money, and effort that a new trial would require. Id. at 854.

       In this case, several hours after the jury was excused for deliberations, the trial
judge informed the parties’ attorneys that the jury did not expect to reach a verdict and
that some of the jurors would not be able to return the following day. He told the
attorneys that, in an effort to avoid a mistrial, he could give the jury “a little dynamite
charge” to explain the importance of their role. Although the judge stated that he did not
have a prepared supplemental instruction, neither party objected. The jury returned to the
courtroom, and the judge gave them the following supplemental instruction:

              What I want to say to you is this: This case has been in the
       development stage for about two years, and these folks have spent an awful
       lot of money to get this case prepared. It’s been a well-tried case. They’ve
       poured their hearts into it. If I send you home with a mistrial, essentially
       they’re going to have to do this all over again, and 12 more people or 14
       people, whatever we start with – we’ll end up with 12 -- will have to do it
       again.


9
  The instruction set forth in Kersey has since been adopted, nearly verbatim, as Tennessee Pattern Jury
Instruction–Civil 15.17 Instructions as to Unanimous Verdict.
                                                - 26 -
             They’ve made a really honest effort. They would like you to resolve
      this problem for them today. I know you’re probably tired. This is your
      third day here. There have been a lot of things and these questions aren’t
      necessarily easy to answer.

      ...

             Think about what I’ve charged you. And I want to remind you that
      I’ve asked you, you know, to consult with one another and to reach an
      agreement if you can do so without violence to your individual judgment. I
      don’t want to emphasize that violent part; I’ve already talked about that.

              But each of you must decide the case for yourself -- I’m reading
      again -- but do so only after an impartial consideration of the evidence, with
      your fellow jurors. In the course of your deliberations, do not hesitate -- do
      not hesitate to reexamine your own views and to change your opinions if
      you are convinced that your opinion is not correct. But you don’t have to --
      it says, “Surrender your honest conviction as to the weight or effect of the
      evidence solely because of the opinion of your fellow judges [sic].”

             It’s anticipated that you might not agree. But think about the effect
      of it and think about whether, in this 15-minute break that you have,
      whether or not you just have gotten yourself into a corner and maybe you
      can change your mind.

Following the supplemental instruction, the jury was excused for further deliberations.
Sometime thereafter, the parties’ attorneys informed the judge that they would accept a
majority verdict. Nevertheless, after further deliberation the jury eventually returned a
unanimous verdict upholding Ms. Link’s 1998 will.

       The Contestants argue that the trial court’s supplemental instruction in this case
constituted a “dynamite charge” similar to those rejected by the Tennessee Supreme
Court in Kersey and Steely. While the trial court’s mention of the time and money
invested in the case was inadvisable, it does not require reversal in this case for three
reasons. First, when the judge informed the parties’ attorneys that the jury was
deadlocked, he stated, “I can give [the jury] a little dynamite charge. I don’t have a
written charge to that effect, but explain to them the importance of the jury system, the
importance of their efforts to reach a unanimous verdict, and ask them to go back there
and stay awhile.” Despite the judge’s representation that he did not have a written charge
prepared, neither party objected. Thus, given the choice between a possible mistrial and
an improvised supplemental instruction, both parties chose the latter. Second, the trial
                                          - 27 -
court’s supplemental instruction, in large part, tracked the language set forth in both
Kersey and adopted by the Tennessee Pattern Jury Instructions. The court did not instruct
the jury that jurors holding the minority view should surrender their convictions and
follow the majority. See Kersey, 525 S.W.2d at 140 (“[T]he minority should listen to the
views of the majority with the disposition of being convinced.”). Similarly, the court did
not instruct the jurors that they had a duty to agree. See Steely, 556 S.W.2d at 855 (“[I]t
is the duty of each and every juror to agree upon a verdict if he can conscientiously do
so.”). Rather, the trial judge expressly instructed the jurors that they were not required to
surrender their honest convictions as to the weight or effect of the evidence solely
because of the opinion of their fellow jurors. In our view, a reference to time and money
invested in the case, although inadvisable, is not necessarily grounds for reversal when
made in the context of an otherwise appropriate supplemental instruction. Third, the
record reflects that the parties agreed to accept a majority verdict after the trial court gave
its supplemental instruction.10 As we explained above, the primary concern expressed by
courts in rejecting the dynamite charge is that it may impair the right to a unanimous
verdict by coercing jurors holding the minority view in deliberations to surrender their
beliefs and follow the majority. See Kersey, 525 S.W.2d at 144. No such risk exists
when, as in this case, the parties have agreed to accept a majority verdict. In light of the
foregoing, we conclude that the trial court’s supplemental instruction does not require
reversal of the jury verdict.

       Next, the Contestants submit that the trial judge’s ex parte communications with
the jury require reversal. The Tennessee Supreme Court addressed the propriety of a trial
judge’s ex parte communications with the jury in Spencer v. A-1 Crane Services, Inc.,
880 S.W.2d 938 (Tenn. 1994). The Spencer Court condemned the practice, stating,
“Such communication is always error and should not occur under any circumstances.”
Id. at 941. Nevertheless, it did not hold that every ex parte communication requires
reversal. Id. Instead, it provided the following guidance in determining whether an ex
parte communication requires reversal:

        The best position seems to us to be that a trial judge’s ex parte
        communication with a jury in a civil case does not require reversal per se,
        but reversal is required where a timely complaining party shows specific
        prejudice or where, owing to the nature of the ex parte communication, the
        reviewing court is unable to determine whether the action was actually
        harmless.


10
  Rule 48 of the Tennessee Rules of Civil Procedure permits parties in a civil action to “stipulate that the
jury shall consist of any number less than that provided by law, or that a verdict or a finding of a stated
majority of the jurors shall be taken as the verdict or finding of the jury.”
                                                  - 28 -
Id. (emphasis in original) (quoting Guy v. Vieth, 754 S.W.2d 601, 605 (Tenn. 1988)).

        In this case, the trial judge communicated with the jury off the record and out of
the presence of the parties and their attorneys after giving his supplemental instruction.
In their post-judgment motion, the Contestants raised the issue as one of 43 alleged errors
that they argued necessitated a new trial. Their full discussion of the issue in the motion
states, “The trial judge engaged in ex parte communications with the jury.” The trial
judge addressed the issue at its hearing on the post-judgment motion as follows:

               I’m not going to try to go through each and every thing that you put
       forth, but I think at the end of the day, one of the things that troubles me . . .
       is number 38, that the trial judge engaged in ex parte communications with
       the jury. That’s a pretty broad statement, and it could be mischaracterized
       as I sat back there in the jury room and sat around and talked with them,
       which is not true.

              The event that occurred -- and you all didn’t specify what it was, but
       you hint around it, [was] that after the Court had given the dynamite charge
       and given the jury an opportunity to step out in the hall and -- or outside
       and take a break, the foreman or foreperson of the jury sent a message to
       me in chambers through the bailiff that there had been maybe some
       intimidation after the jury charge. One witness -- excuse me -- one juror
       had gone to another juror and said something to the effect [of], “You need
       to change your vote.”

               I wish I had put that on the record. I wish we had gone into the
       courtroom and I had them put that in writing, but they were instructed to
       certainly notify me if there was anything of any concern and they did. And,
       as I said, the better way would have been to have done that in writing.

              But to cure that, I called all of you into my chamber and I outlined
       for you what had happened. I disclosed it as I knew it and neither of you
       objected to the manner in which I had handled it. And the manner in which
       I had handled it was to simply ask that juror, as the instructions called for --
       and I think I explained that to you all in chambers -- was to, you know,
       don’t give up on your feelings but be willing to consider the opinions of
       others. And I simply asked them to do that.

       ...


                                             - 29 -
               Now, with regard to that, I think that’s worthy of my having stated
       it. I think it’s clear that you all had an opportunity at the trial or before the
       verdict to make an objection and no objection was made to the manner in
       which that was handled. Full disclosure was made of what had happened.
       And I don’t know of any other way to have disclosed it other than that.

The Contestants do not dispute that the trial judge’s explanation of the ex parte
communication is accurate. As such, they implicitly concede that they did not object to
the communication after learning about it at trial. Moreover, they have not shown any
specific prejudice from the communication. While the Contestants assert that the judge
could have engaged in other ex parte communications with the jury, there is nothing in
the record to suggest that he did. It therefore appears that the judge’s only ex parte
communication with the jury consisted of an attempt to reiterate his previous jury
instructions that were made on the record in open court. While the communication was
not advisable, it does not require a new trial.

                                    F. Thirteenth Juror

        The Contestants argue that the trial judge misconstrued his role as thirteenth juror
and approved the jury’s verdict for a reason other than his own satisfaction with the
verdict based on an independent evaluation of the evidence. Rule 59.06 of the Tennessee
Rules of Civil Procedure provides that a trial court may grant a new trial because the
verdict is contrary to the weight of the evidence. When a party moving for a new trial
asserts that the jury’s verdict was contrary to the weight of the evidence, it is the trial
judge’s duty to independently weigh the evidence to determine whether it preponderates
against the verdict and, if so, to grant a new trial. Jones v. Tenn. Farmers Mut. Ins. Co.,
896 S.W.2d 553, 556 (Tenn. Ct. App. 1994). Like the jury, the trial judge is not bound to
give any reasons for its decision to grant or deny a new trial based on the preponderance
of the evidence. Cooper v. Tabb, 347 S.W.3d 207, 221 (Tenn. Ct. App. 2010). When the
trial judge approves the verdict without comment, the appellate court will presume that
the trial judge adequately performed his or her function as the thirteenth juror. Id.
However, a statement indicating that the trial judge has misconceived his or her duty is
grounds for reversal on appeal. Shivers v. Ramsey, 937 S.W.2d 945, 947 (Tenn. Ct. App.
1996).

        Here, in its hearing on the Contestants’ post-judgment motion, the trial judge
stated, “I believe that having sat through that trial, listened to the witnesses, that I think
there was sufficient material evidence to support the jury’s finding. And as 13th juror, I
would not overturn the jury’s verdict for that reason.” On appeal, the Contestants submit
that this statement indicates the judge deferred to the jury’s verdict without independently
weighing the evidence. We do not share that interpretation of the statement. In our view,
                                            - 30 -
the statement merely indicates the judge’s satisfaction that there was sufficient evidence
from which the jury could have resolved the case the way it did. This interpretation is
consistent with our analysis of similar statements made by trial judges in past cases. See
Washington v. 822 Corp., 43 S.W.3d 491, 494-95 (Tenn. Ct. App. 2000) (reaching the
same conclusion regarding the trial judge’s statement, “It appears to the Court now that
the jury verdict in this cause is supported by sufficient evidence and therefore should not
be disturbed”). Accordingly, we are satisfied that the trial judge adequately performed
his role as the thirteenth juror.

                                  G. Material Evidence

        Finally, the Contestants argue that the jury’s verdict is not supported by sufficient
evidence in the record. When the trial court approves a jury verdict, the appellate courts
may only review the record to determine whether it contains material evidence to support
the verdict. See Tenn. R. App. P. 13(d); Overstreet, 4 S.W.3d at 718. This Court has
described material evidence as “such relevant evidence as a reasonable mind might
accept as adequate to support a rational conclusion and such as to furnish a reasonably
sound basis for the action under consideration.” White v. Premier Med. Grp., 254
S.W.3d 411, 417 (Tenn. Ct. App. 2007) (citations omitted). In determining whether a
jury’s verdict is supported by material evidence, the appellate court does not determine
the credibility of witnesses or weigh evidence. Reynolds v. Ozark Motor Lines, Inc., 887
S.W.2d 822, 823 (Tenn. 1994). Rather, it must “(1) take the strongest legitimate view of
all the evidence in favor of the verdict; (2) assume the truth of all evidence that supports
the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4) discard all
[countervailing] evidence.” In re Estate of Blackburn, 253 S.W.3d at 613 (citations
omitted). If, after doing so, there is material evidence to support the jury’s verdict, then
the appellate court must affirm the judgment. Overstreet, 4 S.W.3d at 718.

        The jury found that Ms. Link had the requisite testamentary capacity to execute
her 1998 will. The law requires that the testator’s mind be sufficiently sound to enable
him or her to know and understand the force and consequence of the act of making the
will. In re Estate of Elam, 738 S.W.2d 169, 171 (Tenn. 1987). The testator must have an
intelligent consciousness of the nature and effect of the act, knowledge of the property
possessed, and an understanding of the disposition to be made. Id. In determining
testamentary capacity, the mental condition of the testator at the very time of the will’s
execution is the only point of inquiry but evidence of the testator’s mental condition both
before and after making the will, if not too remote in time, may be presented. Id.
Moreover, if there is a properly executed will, it is presumed that the testator was of
sound mind and possessed the requisite testamentary capacity to make the will. Keasler,
973 S.W.2d at 216. Here, Carlynn Newcom and Reed Durham both testified that Ms.
Link had her “wits about her” in 1998. Don Durham testified that Ms. Link “appeared to
                                           - 31 -
be” in her right mind in 2001. Additionally, Mr. Kelly’s handwritten notes from a March
5, 1998 meeting with Ms. Link state, “She was well aware of what she wanted to do.”
The jury’s verdict regarding Ms. Link’s testamentary capacity is therefore supported by
material evidence.

        The jury found that Ms. Link had the requisite testamentary intent to dispose of
her property in the manner set forth by her 1998 will. In assessing testamentary intent, “it
is immaterial whether a testator necessarily understands that by executing a particular
document he is making a will, so long as the document demonstrates it was his clear
intention to dispose of his property after his death.” In re Estate of Blackburn, 253
S.W.3d at 615 (quoting In re Meade, 156 S.W.3d 841, 843-44 (Tenn. Ct. App. 2004)).
The circumstances surrounding the testator’s execution of the document do not indicate
testamentary intent. Id. Rather, testamentary intent must be determined “from what the
testator has written and not from what it is supposed he intended.” Id. (citations omitted).
Ms. Link’s 1998 will is titled, “LAST WILL AND TESTAMENT OF GERTRUDE B.
LINK.” In pertinent part, it states, “I do hereby make the following devise . . . To the
First Baptist Church of Jasper, Tennessee, the sum of [$10,000] . . . I do hereby give,
devise and bequeath all of the rest, residue and remainder of my estate . . . to my nephew,
James Clifford Layne.” That language reflects a clear intention to dispose of Ms. Link’s
property after her death. The jury’s verdict regarding Ms. Link’s testamentary intent is
therefore supported by material evidence.

        The jury also found that Ms. Link’s 1998 will was not forged and was not the
product of undue influence or fraud. A will executed in compliance with all of the
formalities of law is presumed to be valid and free from undue influence or fraud. See In
re Estate of Eden, 99 S.W.3d at 88. Here, Mr. Layne presented evidence that Ms. Link’s
1998 will was executed in compliance with all of the requisite legal formalities. Ms.
Kelly testified that Mr. Kelly was not available to testify in light of his declining health
but identified his signature on the will as a subscribing witness. Ms. Steele identified her
signature on the will as a subscribing witness. Ms. Murphy identified her signature on
the attached affidavit as the notary. Ms. Kelly, Ms. Steele, and Ms. Murphy each
testified regarding Mr. Kelly’s procedures when drafting a will for a client. They each
explained that Mr. Kelly always met with the client first, alone in his office, to discuss
the client’s intentions. Mr. Kelly’s handwritten notes reflect that he met with Ms. Kelly
alone on March 5, 1998, several days before she executed the 1998 will, and that she was
“well aware of what she wanted to do.” The 1998 will clearly and conspicuously sets
forth the manner in which Ms. Link intended to dispose of her property after her death
and does not bear any evidence of alteration on its face. The jury’s verdict upholding the
validity of Ms. Link’s 1998 will is therefore supported by material evidence.


                                           - 32 -
                                    V. CONCLUSION

        After careful review, we affirm the trial court’s judgment and remand this case to
the trial court for any further proceedings that may be necessary and consistent with this
Opinion. The costs of this appeal are taxed to the appellants, Carlynn Newcom, Don
Durham, and Reed Durham, and their sureties, for which execution may issue if
necessary.



                                                   _________________________________
                                                   ARNOLD B. GOLDIN, JUDGE




                                          - 33 -
