                   IN THE SUPREME COURT OF TENNESSEE
                               AT JACKSON
                                 November 14, 2001 Session

      BILLY JOE CHILDRESS v. NATASHA BARNES CURRIE, ET AL.

                       Appeal by Permission from the Court of Appeals
                           Circuit Court for Lauderdale County
                           No. 5029 Joseph H. Walker, Judge



                       No. W1999-00471-SC-R11-CV - Filed May 3, 2002


        The issue presented in this case is whether a confidential relationship arises as a matter of
law when an unrestricted power of attorney is executed but not exercised. The trial court held that
a confidential relationship existed and that the resulting presumption of undue influence could only
be rebutted by proof of independent advice to the decedent. Because there was no such proof, the
trial court set aside the jury’s verdict and found that the will was invalid.

        On appeal, the Court of Appeals concluded that since the attorney-in-fact was unaware of the
power of attorney at the time the decedent executed her will, there was not a confidential relationship
between the attorney-in-fact and the decedent and, therefore, no presumption of undue influence.
After a thorough review of the record and the relevant authority, we hold that a confidential
relationship does not arise as a matter of law when an unrestricted power of attorney is executed
without being exercised. Accordingly, the judgment of the Court of Appeals is affirmed.

 Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed

E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER and WILLIAM M. BARKER , JJ., joined.

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Billy Joe Childress.

Charles W. Fowler and Adam F. Glankler, Memphis, Tennessee, for the appellee, Natasha Barnes
Currie.

                                             OPINION

                                         BACKGROUND
        This case involves a will contest. Virginia Mary Leonard (“the decedent”) executed a will
on February 16, 1994, leaving her entire estate to the appellant, Billy Joe Childress, who was a friend
and former employer. On May 22, 1997, the decedent, then age 78, executed another will, leaving
her entire estate to the appellee, Natasha Barnes Currie, the decedent’s cousin.1 The decedent was
a widow and had no children. The evidence in the record is summarized below.

         In April of 1997, Natasha Currie began living with her elderly cousin, Virginia Leonard, on
a part-time basis. Currie helped her cousin care for herself and her home. By May of 1997, Currie
was living with and assisting Leonard on a full-time basis while Leonard was afflicted with
incontinence, insomnia, and anxiety.

        On May 5, 1997, Leonard asked Currie to drive her and Elizabeth Barnes, her second cousin,
to the Bank of Ripley where Leonard owned a certificate of deposit totaling approximately $8,500.
While at the bank, Leonard withdrew approximately $4,400 from the certificate of deposit and
placed the remainder – approximately $4,100 – in a certificate of deposit in her name and the name
of Elizabeth Barnes.

        Currie testified that Leonard withdrew the $4,400 to pay the deposit on a pre-arranged funeral
policy, to pay property taxes for 1994, and to pay for cleaning supplies and clothing. With the
exception of the $2,200 later paid as a deposit on the funeral policy, the record is silent as to the
amount of any other expenses and the balance remaining from the $4,400.

        On May 22, 1997, Leonard asked Currie to drive her and Elizabeth Barnes to Currie’s
Funeral Home so that she could purchase a pre-arranged funeral plan. As Currie and Barnes waited
outside the office, the decedent purchased the plan from Frank Currie.2 After purchasing the funeral
plan, she asked Frank Currie to draft a power of attorney in favor of Natasha Currie and a will
leaving her entire estate to Currie. Frank Currie, who had known Leonard for several years, testified
that she acted as he had always known her to act, strong-willed. He also testified that she paid for
the funeral plan herself and stated that she wanted to get her business affairs in order.

       Although not an attorney, Frank Currie agreed to draft the documents. Leonard then
executed both a power of attorney to Natasha Currie and a will, which stated in part as follows:

               . . . I, Virginia M. Leonard, of Lauderdale County, State of
               Tennessee, City of Ripley, the undersigned hereby declare and
               appoint Natasha Barnes Currie the right to handle any and all of my
               business and to live with me. At the time of my death, Natasha
               Barnes Currie will have all of my possessions.


       1
               Ms. Cu rrie is the gran ddaug hter of M s. Elizabeth Barnes, th e deced ent’s secon d cousin .

       2
               Frank C urrie is the un cle of M s. Currie’s fo rmer hu sband.

                                                        -2-
Natasha Currie was not present when Leonard signed the documents; however, Elizabeth Barnes
witnessed the decedent’s execution of the will. Currie testified that she did not find out about the
power of attorney and the will until after everyone had left the funeral home. On May 23, 1997, the
day after the documents were executed, Ms. Currie recorded the power of attorney in the Register’s
Office of Lauderdale County.

        Natasha Currie testified that in the early part of June 1997, Leonard asked that she withdraw
the money from the joint certificate of deposit with Barnes in order to pay the balance on the
decedent’s funeral plan – approximately $3,200 – before she went into the hospital. Currie also
closed two of the decedent’s bank accounts, totaling approximately $700. When asked where the
remainder of Leonard’s money was spent, Currie could not recall.

        The record reflects that the decedent was seen by her treating physician, Dr. Luis Wong, on
April 3, 1997; May 5, 1997; and June 10, 1997. On June 10, 1997, she was admitted to Baptist
Memorial Hospital in Ripley, Tennessee. The admitting diagnosis indicated that Leonard suffered
from coronary artery disease, osteoarthritis, chronic organic brain disease, and chronic senile
dementia. She was transferred later to the geriatric/psychiatric unit of the Baptist Memorial Hospital
and treated by Dr. Louis Wells, a psychiatrist. Dr. Wells testified that Leonard was admitted to the
hospital because she was very paranoid and threatened to harm herself. Dr. Wells and his staff
agreed that Leonard was paranoid, with some dementia and short-term memory loss. The doctor
stated that on occasion Leonard was belligerent, hostile, and very paranoid, and that he prescribed
medication for her. On July 3, 1997, Leonard’s condition improved, and she was transferred to a
nursing home. She died on July 19th, sixteen days after entering the nursing home.

        On July 31, 1997, Leonard’s February 1994 will was admitted to probate in the Lauderdale
County Probate Court, naming the appellant, Billy Joe Childress, as the sole beneficiary. In
September of 1997, Natasha Currie filed a petition contesting the February 1994 will and offering
Leonard’s May 1997 will for probate, which named Currie as the sole beneficiary. Childress
responded that Leonard did not have testamentary capacity to execute the May 1997 will, and that
she signed the will as a result of undue influence. In November of 1997, the probate court rejected
the February 1994 will and admitted Leonard’s May 1997 will to probate.

        At the request of both parties, the will contest was transferred to the Lauderdale County
Circuit Court for a jury trial. The jury returned a verdict upholding the validity of the May 1997
will, but the trial court granted a motion for a directed verdict setting aside the jury’s finding that the
decedent, Leonard, had not been unduly influenced. The trial court found that there was a
presumption of undue influence because there was a confidential relationship, and that Leonard had
not received independent advice prior to executing her May 1997 will that would have rebutted the
presumption of undue influence and shown the fairness of the transaction.

       On appeal, the Court of Appeals concluded that since Currie was unaware of the power of
attorney at the time Leonard executed her will, there was not a confidential relationship between
Currie and Leonard. Moreover, the court concluded that since there was not a confidential

                                                   -3-
relationship present, there was no presumption of undue influence and that Currie was not required
to prove the fairness of the transaction by clear and convincing evidence. We granted permission
to appeal.


                                   STANDARD OF REVIEW

       A directed verdict is appropriate in a will contest case only when the evidence in the case is
susceptible to but one conclusion. See Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994). An
appellate court must take the strongest legitimate view of the evidence favoring the opponent of the
motion when called upon to determine whether a trial court should have granted a directed verdict.
Id. Furthermore, all reasonable inferences in favor of the opponent of the motion must be allowed
and all evidence contrary to the opponent’s position must be disregarded. Id. Ultimately, an
appellate court “may grant the motion only if, after assessing the evidence according to the foregoing
standards, it determines that reasonable minds could not differ as to the conclusions to be drawn
from the evidence.” Id. (citations omitted).

                                            ANALYSIS

      In a will contest, a properly executed will may be challenged on a theory that the decedent’s
mind was not “sufficiently sound to enable him or her to know and understand the force and
consequence of the act of making the will” at the time the will was executed. In re Estate of Elam,
738 S.W.2d 169, 171-72 (Tenn. 1987). As this Court has said:

                The testator must have an intelligent consciousness of the nature and
                effect of the act, a knowledge of the property possessed and an
                understanding of the disposition to be made. While evidence
                regarding factors such as physical weakness or disease, old age, blunt
                perception or failing mind and memory is admissible on the issue of
                testamentary capacity, it is not conclusive and the testator is not
                thereby rendered incompetent if her mind is sufficiently sound to
                enable her to know and understand what she is doing.

Id. (citations omitted).

        Similarly, a will may be challenged on the basis that the decedent was subject to the undue
influence of another in executing the will. In Tennessee, for example, where there is a “confidential
relationship, followed by a transaction wherein the dominant party receives a benefit from the other
party, a presumption of undue influence arises, that may be rebutted only by clear and convincing
evidence of the fairness of the transaction.” Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995)
(citations omitted). A confidential relationship is any relationship which gives one person dominion
and control over another. See Mitchell v. Smith, 779 S.W.2d 384, 389 (Tenn. Ct. App. 1989).


                                                 -4-
         The burden of proof regarding a confidential relationship rests upon the party claiming the
existence of such a relationship. See Brown v. Weik, 725 S.W.2d 938, 945 (Tenn. Ct. App. 1983).
Once a confidential relationship has been shown and a presumption of undue influence arises, the
burden shifts to the dominant party to rebut the presumption by proving the fairness of the
transaction by clear and convincing evidence. Matlock v. Simpson, 902 S.W.2d at 386; see Gordon
v. Thornton, 584 S.W.2d 655, 658 (Tenn. Ct. App. 1979). To prove the fairness of the transaction,
the dominant party may show that the weaker party received independent advice before engaging
in the transaction that benefitted the dominant party. See Hogan v. Cooper, 619 S.W.2d 516, 519
(Tenn. 1981); see also Richmond v. Christian, 555 S.W.2d 105, 107-08 (Tenn. 1977) (proof that the
donor received independent advice respecting the consequences and advisability of the gift)
(citations omitted).

        This Court has held that a confidential relationship arises as a matter of law when an
unrestricted power of attorney is granted to the dominant party. Matlock v. Simpson, 902 S.W.2d
at 386 (citing Mitchell v. Smith, 779 S.W.2d at 389). In that case, the decedent executed an
unrestricted power of attorney, which gave his attorney full authority to handle his business affairs,
and a will, which left all of his property to his attorney except for a few personal items. 902 S.W.2d
at 385. Both the power of attorney and the will were drafted by the decedent’s attorney on the same
day. Id. This Court therefore concluded that the trial court erred by failing to charge the jury that
a confidential relationship existed as a matter of law based on both the attorney-client relationship
and the grant of an unrestricted power of attorney, and that the presumption of undue influence had
to be rebutted with clear and convincing evidence. Id. at 386.

         The Court in Matlock cited Mitchell v. Smith, 779 S.W.2d 384 (Tenn. Ct. App. 1989), for
the proposition that an unrestricted power of attorney, in and of itself, creates a confidential
relationship between the parties. Matlock, 902 S.W.2d at 386. In Mitchell, the decedent, Willie A.
Bush, granted an unrestricted power of attorney to his niece, Debra Gloria Banks Smith. Mitchell,
779 S.W.2d at 386-87. Mr. Bush was living with and being cared for by Mrs. Smith and her parents.
Id. at 386. Mr. Bush signed his will and the power of attorney in Mrs. Smith’s van at the attorney’s
office, selected by Mrs. Smith, because Mr. Bush was too weak to enter the office. Id. at 387. Mr.
Bush’s will named Mrs. Smith as executrix and named her as a beneficiary. Id. At Mr. Bush’s
request, Mrs. Smith placed his will in her safe-deposit box. Id. Mr. Bush and Mrs. Smith signed
new signature cards giving Mrs. Smith access to Mr. Bush’s bank accounts. Id. Mr. Bush
maintained possession of his bank books, and Mrs. Smith did not write checks without prior
discussion with Mr. Bush. Id. Before Mr. Bush’s death, Mrs. Smith used Mr. Bush’s funds to pay
for his will, his funeral, and groceries. Id. Testimony showed that Mr. Bush may have executed the
power of attorney as early as April 29, 1986, and he signed his will on May 12, 1986. Id. at 387-89.
The Court of Appeals therefore held that there was evidence that Mrs. Smith had a confidential
relationship with her uncle before he executed his will and affirmed the trial court’s denial of a
directed verdict on the issue. Id.

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

                                                 -5-
287 S.W.2d 57, 61 (1956)). A careful reading of Matlock and Mitchell shows that an unexercised
power of attorney does not in and of itself create a confidential relationship and we clarify Matlock
to the extent it suggests otherwise. The core definition of a confidential relationship requires proof
of dominion and control. Matlock, 902 S.W.2d at 385-86; Mitchell, 779 S.W.2d 384 at 389. When
an unrestricted power of attorney is executed but has not yet been exercised, good sense dictates that
there exists no dominion and control and therefore no confidential relationship based solely on the
existence of the power of attorney. In Matlock, there was additional evidence of dominion and
control based upon the attorney-client relationship and the personal execution by the attorney of the
will and the power of attorney. Matlock, 902 S.W.2d at 385-86. In Mitchell, the niece acted as
caretaker to her ailing uncle, chose an attorney for him, drove her uncle to the attorney’s office where
he signed the power of attorney and will in her van, and began exercising her power of attorney
before her uncle’s death. Mitchell, 779 S.W.2d at 386-87.

        We conclude that this case is distinguishable from Matlock v. Simpson and Mitchell v.
Smith. The record reveals that Virginia Leonard asked Natasha Currie to drive her and Elizabeth
Barnes to Currie’s Funeral Home so that the decedent could purchase a pre-arranged funeral plan.
Once at the funeral home, Currie and Barnes waited outside the office while Leonard purchased the
plan. After purchasing the plan, the decedent requested that Frank Currie draft a power of attorney
in favor of Natasha Currie and a will making her the sole beneficiary.

         Unlike Matlock, Natasha Currie did not personally execute the documents on the decedent’s
behalf. Indeed, she was not present when the power of attorney and will were executed and she did
not learn of the instruments until after everyone had left the funeral home. Moreover, there is no
evidence that she knew of the decedent’s intentions at any point before the documents were
executed. In short, there is no basis for finding that a confidential relationship gave rise to a
presumption of undue influence under the facts of this case. Indeed, the jury in this case determined
that the decedent’s May 1997 will was valid and that the decedent was not under undue influence
at the time of the execution of the power of attorney.3

        In short, the trial court’s decision to set aside the jury’s verdict was based on its erroneous
interpretation of Matlock. Although we in no way alter the holding expressed in Matlock, we simply
hold that it was not applicable under the facts of this case. We therefore conclude that the trial court
erred in setting aside the jury’s verdict and directing a verdict in favor of Childress.

                                               CONCLUSION

        We hold that a confidential relationship does not arise, as a matter of law, when an
unrestricted power of attorney is executed but is not exercised. Therefore, the judgment of the Court



        3
                Because it had been instructed on the presumption of undu e influence, the jury also found that the
presumption had been rebutted by clear and convincing evidence.

                                                       -6-
of Appeals is affirmed. Costs of the appeal are assessed to the appellant, Billy Joe Childress, for
which execution may issue if necessary.


                                                      ___________________________________
                                                      E. RILEY ANDERSON, JUSTICE




                                                -7-
