                    IN THE SUPREME COURT OF TENNESSEE
                               AT KNOXVILLE
                         October 5, 2012 Session Heard at Athens1

                   IN RE: ESTATE OF RAYMOND L. SMALLMAN

            Appeal by Permission from the Court of Appeals, Eastern Section
                        Chancery Court for Hamblen County
            Nos. 2009P120, 2009-440    Thomas R. Frierson, II, Chancellor


                  No. E2010-02344-SC-R11-CV - Filed February 26, 2013


The primary issue we address in this appeal is whether certain evidence was erroneously
admitted at trial and if so, whether it more probably than not affected the jury’s verdict. This
case arose out of the death of Raymond Smallman and the ensuing dispute between his two
sons from a previous marriage and Linda Caraway, whom he married two weeks before his
death. Mr. Smallman’s sons challenged the validity of their father’s marriage to Ms.
Caraway and the validity of the lost will that Ms. Caraway sought to have established. Ms.
Caraway claimed to be Mr. Smallman’s surviving spouse and the sole beneficiary of his
estate pursuant to the terms of his will. The case went to trial, and the jury was allowed to
hear evidence about Ms. Caraway’s real estate holdings and her late mother’s will. The jury
found in favor of Mr. Smallman’s sons. The Court of Appeals affirmed. We granted Ms.
Caraway permission to appeal to address whether Mr. Smallman’s sons had standing to
contest the validity of their father’s second marriage and whether the introduction of
evidence regarding Ms. Caraway’s late mother’s will and her real estate holdings was error
and if so, whether it more probably than not affected the jury’s verdict. We hold that Ms.
Caraway waived her argument that Mr. Smallman’s sons lacked standing to contest the
validity of her marriage to their father. We further hold that the trial court erred in allowing
into evidence testimony regarding Ms. Caraway’s real property holdings and her late
mother’s will. Because this evidence more probably than not affected the jury’s verdict, we
reverse the judgment of the trial court and remand for a new trial.

    Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
                           Reversed; Cause Remanded




        1
        Oral argument was heard in this case in Athens, McMinn County, Tennessee, as part of this Court’s
S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.
S HARON G. L EE, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., J ANICE
M. H OLDER, and C ORNELIA A. C LARK, JJ., joined. W ILLIAM C. K OCH, JR., J., filed a separate
opinion concurring in part and dissenting in part.

Donald Capparella, and Candi Henry, Nashville, Tennessee, for the appellant, Linda
Caraway.

Douglas T. Jenkins, Rogersville, Tennessee; W. Lewis Jenkins, Jr., Dyersburg, Tennessee;
and Denise Terry Stapleton, Morristown, Tennessee, for the appellees, Mark Smallman and
Jeffrey Smallman.

                                               OPINION

                                   I. Facts and Procedural History

        Raymond Smallman’s first wife, with whom he had two sons, Mark and Jeffrey,2 died
in 2004. In 2006, Mr. Smallman, age sixty-nine, met the defendant, Linda Caraway, age
fifty-nine, when she visited his pawn shop in Morristown. They began dating and decided
to marry, planning a June 2008 wedding, although they did not publicly announce their
marriage plans. In Spring 2008, Mr. Smallman was diagnosed with inoperable lung
cancer. The wedding plans were cancelled, and Mr. Smallman underwent chemotherapy and
radiation treatments. In 2009, he underwent a second round of chemotherapy. Treatments
were not successful, however, and his health rapidly declined. In April 2009, Mr. Smallman
executed a will at his attorney’s office. Ms. Caraway moved into Mr. Smallman’s residence
in May 2009 and took care of him as his health worsened. On June 24, 2009, they were
married at Mr. Smallman’s home. Neither Ms. Caraway nor Mr. Smallman told anyone
about the wedding. Thirteen days after the wedding, on July 7, 2009, Mr. Smallman died at
his home. After his death, Mr. Smallman’s sons learned that two months before his death,
their father had executed a will naming Ms. Caraway as primary beneficiary of his estate, the
value of which was estimated to be in excess of one million dollars.3 The original will was
never located after Mr. Smallman’s death.




        2
          Mark and Jeffrey Smallman are referred to individually by their first names to distinguish them
from their father who is referred to as Mr. Smallman.
        3
          The exact value of Mr. Smallman’s estate is not apparent from the record. At trial, the court-
appointed estate administrator presented an interim accounting showing the estimated value of assets passing
under the will was approximately one million dollars; however, this amount did not include the value of
several automobiles and other miscellaneous property.

                                                    -2-
        On July 20, 2009, Mark Smallman filed a petition in Hamblen County Chancery
Court, Probate Division, seeking to be named as Administrator of his father’s estate and
asserting that his father died without a will and was not married to Ms. Caraway at the time
of his death. On July 30, 2009, Ms. Caraway, as Mr. Smallman’s widow, filed a petition in
the same court seeking to have Mr. Smallman’s will admitted to probate. She attached a
copy of the will and asserted that she had been denied access to Mr. Smallman’s home to
search for the original will. On September 4, 2009, the Smallman sons filed a complaint for
declaratory judgment in the Hamblen County Chancery Court seeking to have their father’s
marriage to Ms. Caraway declared void and for a declaration that Mr. Smallman died
intestate. The complaint also asserted that Mr. Smallman’s will was not valid due to Ms.
Caraway’s undue influence and fraud and Mr. Smallman’s lack of testamentary capacity
when the purported will was executed. Ms. Caraway answered and requested that the
complaint be dismissed.

        At the outset of trial, the trial court addressed a motion in limine filed by Ms. Caraway
requesting that the Smallman sons be prohibited from introducing (1) any evidence regarding
Ms. Caraway’s financial condition, including any information as to her real estate holdings,
or (2) any evidence regarding the will of Ms. Caraway’s late mother, Rena Blair, (“the Blair
will”) because the evidence would be prejudicial and irrelevant to the issues in the case. The
trial court took the matter under advisement and later ruled that the evidence regarding both
the Blair will and Ms. Caraway’s real property holdings was admissible.

        The issues before the jury included whether Mr. Smallman’s will was void based on
his lack of testamentary capacity and whether the will was obtained through the undue
influence of Ms. Caraway; whether the lost will should be established and admitted to
probate; and whether the marriage was valid based on Mr. Smallman’s mental capacity. At
trial, Ms. Caraway testified on her own behalf and called as witnesses James Gose, Ross
Carmack, Betty Collins, Bill Foutch, John Brice, Clinton Anderson, Sandra Hardy, and Beth
Boniface.

        Ms. Caraway, who was widowed in 1999, testified that she first met Mr. Smallman
through a mutual friend at Mr. Smallman’s pawn shop in the summer of 2006. After their
meeting, he called her the next day and began pursuing her. He came by her place of
business, called her, and left notes on her car expressing his fondness for her. On their first
date, Mr. Smallman told her that he “was looking for somebody to spend his life with and
that it was me.” But at that time, she was involved in pursuing the ministry and was not
interested in marriage. However, they enjoyed each other’s company and started spending
a lot of time together. By the next year, she agreed to marry him, and they planned a June
2008 wedding. Although they did not announce their marriage plans, Mr. Smallman bought
wedding rings in December 2007.

                                               -3-
       In March or April 2008, Mr. Smallman was diagnosed with inoperable lung cancer,
and the June 2008 wedding was cancelled. Mr. Smallman underwent chemotherapy and
radiation treatments. In 2009, Mr. Smallman underwent a second round of unsuccessful
chemotherapy. His health rapidly declined.

       In April 2009, Mr. Smallman had Ms. Caraway make an appointment for him with
attorney Clinton Anderson to discuss executing a will and some other matters. On April 16,
2009, she drove Mr. Smallman to Mr. Anderson’s law office and waited in the office
vestibule while he and Mr. Anderson talked. Afterward, Mr. Anderson’s secretary placed
the will in an envelope bearing Mr. Smallman’s name and the designation “Last Will and
Testament.” When Mr. Smallman came out of Mr. Anderson’s office, he held a white
envelope and asked her if she wanted to see what he had done with his will. When she
declined, he sealed the envelope and put it back in the folder.

       Ms. Caraway moved into Mr. Smallman’s residence in May 2009 and took care of him
as his health worsened. She ran errands, took money back and forth from the pawn shop,
fixed his meals, washed his clothes, helped him to the bathroom when he could no longer get
out of bed unassisted, and took him to his doctor’s appointments. She and Mr. Smallman
discussed marriage “all the time” while she was taking care of him. One morning after she
had slept on the floor by his bed and was cleaning Mr. Smallman up after a bout with
diarrhea, he said, “I am so sorry to put you through this.” She assured him he was not putting
her through anything and asked him if she could do anything else for him. He replied, “You
can marry me,” and his eyes were “begging.” She agreed they would be married the
following weekend because she “wanted to do whatever he asked.”

        Mr. Smallman directed Ms. Caraway regarding the wedding arrangements. He told
her to call his cousin, Betty Collins, and invite her to attend the wedding. Mr. Smallman told
her not to call his pastor, Ken Cole, to perform the ceremony because Reverend Cole’s wife
was ill and, instead, to call Mr. Smallman’s friend and business acquaintance, Ross Carmack,
an ordained minister. On June 22, 2009, Ms. Caraway secured and completed an affidavit
from the Hamblen County clerk’s office for Mr. Smallman to sign for the purpose of
obtaining a marriage license. She then called Bill Foutch, an attorney who had done real
estate work for Mr. Smallman, and he came to Mr. Smallman’s residence and notarized Mr.
Smallman’s signature on the affidavit.

      The wedding occurred on June 24, 2009. Ms. Caraway testified that only she, Mr.
Smallman, Ms. Collins, and Mr. Carmack and his wife were present at the marriage
ceremony. She stated that she loved Mr. Smallman, that he loved her, and that he knew what
he was doing when he married her. She also stated that Mr. Smallman “knew what he was
doing” up until the time of his death and knew who his family and friends were. Ms.

                                             -4-
Caraway confirmed that a medical record of Mr. Smallman dated March 30, 2009, stated that
Mr. Smallman was “alert” at that time and that his “mentation [was] good” and that another
medical record dated May 26, 2009, described Mr. Smallman’s “neurological mentation” as
“normal.”

       Ms. Caraway was the only person with Mr. Smallman when he died on July 7,
2009. On the day of Mr. Smallman’s death, she saw the envelope containing the will on a
bookcase in the room where he died. She maintained that she had never asked Mr. Smallman
about the will and did not know its contents. Ms. Caraway stayed in Mr. Smallman’s house
for approximately thirty-six hours after he died and testified that when she left, she removed
only her personal items.

        Following Mr. Smallman’s death, Ms. Caraway and Mr. Smallman’s son, Mark, went
to the funeral home to make arrangements. Ms. Caraway and Mark provided the funeral
director with Mr Smallman’s statistical information but she did not disclose the
marriage. She did, however, ask the funeral director outside of Mark’s presence if it was
important that the death certificate correctly reflect Mr. Smallman’s marital status. She
testified that the day after Mr. Smallman’s death, she told Jeffrey Smallman that she and his
father had married, and Jeffrey said “good” and hugged her. On the Thursday following Mr.
Smallman’s death, Jeffrey angrily called her and told her that they had found a copy of the
will, that it left everything to her, and that they would contest it.

        On cross examination, Ms. Caraway was presented with a list of her real estate
holdings and was questioned about them. The list contained twenty-six tracts of real
property. She verified that the purchase prices, which ranged from $1,704.58 to $172,000,
were correct. She was also questioned regarding the Blair will and the circumstances of its
execution. She and her sister, who died four years before trial, were her mother Rena Blair’s
only children. Six weeks after her sister’s death, Ms. Caraway, at her mother’s request, took
her to have a will made. Her mother, who was terminally ill, executed a will that left
everything to Ms. Caraway and nothing to her sister’s adopted child. Ms. Caraway testified
that at that point, her mother did not execute the will to cut anyone out and that she was her
mother’s “only blood heir.” Ms. Caraway testified that she did not tell her mother what to
put in the will.

       James Gose testified that he was business partners with Mr. Smallman and that they
talked frequently and had discussed Ms. Caraway. Mr. Smallman told him that he had
certain standards for a wife, and that she met those standards. Mr. Smallman told him that
“he had finally found someone that he liked as well as his wife” and wanted to marry
her. Mr. Gose visited Mr. Smallman frequently to discuss business matters. He met with Mr.
Smallman four or five days before he died, and they discussed a problem with the rental

                                             -5-
house they owned jointly. Mr. Smallman never told him about the marriage. According to
Mr. Gose, Mr. Smallman never reached a point where he was mentally incompetent.

       Ross Carmack, a self-employed insurance and financial services broker, testified he
had a business and personal relationship with Mr. Smallman. They became acquainted in
2005, and he assisted Mr. Smallman in setting up fifteen annuities, which named five of his
six grandchildren as beneficiaries. Mr. Carmack last did business with Mr. Smallman in the
middle of May 2009. He stated that Mr. Smallman wanted to limit the amount of money the
grandchildren received each year from their annuities so they would not spend it all at once
or squander it. Mr. Smallman told Mr. Carmack that he was disappointed his sons did not
come around as often as he thought they should after he became ill.

       Mr. Carmack testified that he saw Ms. Caraway at Mr. Smallman’s residence on a
couple of occasions. During the eighteen months before the wedding, Mr. Smallman had
discussed with Mr. Carmack his desire to marry Ms. Caraway. Mr. Smallman had told him
that he had met a new “soul mate” and that she rejuvenated him and said “I need to marry
her. I want to marry her.” A few months before the wedding, Mr. Smallman had told him
that he needed to marry Ms. Caraway so that she could receive benefits from his military
service.

        Although Mr. Smallman knew Mr. Carmack was a minister, Ms. Caraway was not
aware of this fact. Mr. Carmack attested that Ms. Caraway called him and asked him to
perform the marriage ceremony, advising him that their own pastor was out of town and
unavailable, and Mr. Carmack agreed to do so. Before the wedding ceremony, Mr. Carmack
met privately with Mr. Smallman to make sure he wanted to get married. Mr. Carmack said
that Mr. Smallman looked down for a long time and said it was something he wanted to
do. Mr. Carmack also asked Mr. Smallman if he had a will, and Mr. Smallman told him that
he did and that he had things in order the way he wanted them. Although Mr. Carmack did
not ask Mr. Smallman about the contents of the will, Mr. Smallman had previously told him
time and time again that he wanted to take care of Ms. Caraway. Mr. Carmack attested that
at the time of the wedding, although Mr. Smallman was in a hospital bed and his voice was
weak, Mr. Smallman was very alert mentally and appeared to understand what he was
doing. Mr. Carmack was confident that Mr. Smallman wanted to marry Ms. Caraway,
consistent with what Mr. Smallman had told him three years previously. Mr. Carmack stated
that the witnesses to the ceremony were himself, his wife, and Mr. Smallman’s cousin, Betty
Collins.

       Betty Collins, Mr. Smallman’s first cousin, testified that after his wife’s death, Mr.
Smallman told her he had found someone he could be close to and who could fill the empty
place left by his wife. Mr. Smallman expressed a desire to take care of Ms. Caraway. He

                                             -6-
wanted her to stop all the work she was doing so they could be together. As a witness to the
wedding, she thought that Mr. Smallman wanted to marry Ms. Caraway and that although he
was sick physically, he had not declined mentally. She believed that he knew what he was
doing. Ms. Collins testified that Ms. Caraway was Mr. Smallman’s primary caregiver in his
last days.

       Attorney Bill Foutch testified that he represented Mr. Smallman in a real estate
matters beginning in March or April of 2008. He stated that in 2009, shortly before Mr.
Smallman died, he discussed a business matter with Mr. Smallman and that Mr. Smallman
seemed to understand what he was talking about. He attested that Ms. Caraway would bring
items to him on behalf of Mr. Smallman, including, on one occasion, a check. In June, Mr.
Foutch went to Mr. Smallman’s residence regarding the affidavit for the marriage license and
met privately with him. Mr. Smallman signed the affidavit in the presence of Mr. Foutch,
and Mr. Foutch notarized it. Mr. Foutch testified that in his opinion Mr. Smallman knew
what he was doing when he signed the affidavit, and he knew what he was doing when he
married Ms. Caraway.

        John T. Brice, an employee of SunTrust Investment Services, Inc., testified he first
met Mr. Smallman in October or November 1996 in a professional capacity through his work
at SunTrust. He had also purchased pocket knives from Mr. Smallman over the years. On
April 15, 2009, Mr. Smallman changed an account from a joint account with his deceased
father into an individual account. Mr. Brice thought that Mr. Smallman was competent when
he made this account change. Mr. Smallman had an annuity account that named his sons as
equal co-primary beneficiaries and from which approximately $160,000 to $165,000 was
paid to his sons following Mr. Smallman’s death.

        Clinton Anderson, a Morristown attorney, testified that he handled legal matters for
Mr. Smallman, including the preparation of his will. At Mr. Smallman’s request, Mr.
Anderson prepared a will for him on April 16, 2009. Mr. Anderson met privately with Mr.
Smallman and asked him a number of questions to confirm that he was mentally competent
to make a will. Mr. Smallman appeared to be very intelligent and business-like. Mr.
Smallman told Mr. Anderson what he wanted included in his will. Mr. Anderson was
worried that Mr. Smallman was not leaving anything to his sons, so he questioned him about
his intentions. “I asked him why he wasn’t leaving his sons anything, and he said he had
already taken care of them with certificates of deposit[] and maybe accounts on which he had
their names.” After they talked, he prepared the will, printed it, and Mr. Smallman signed
it in his presence and in the presence of Mr. Anderson’s secretary, Sandra Hardy. Mr.
Anderson paid attention to Mr. Smallman because he was very ill and because under the
terms of the will, Ms. Caraway was the sole beneficiary and Mr. Smallman’s sons were
omitted. In Mr. Anderson’s opinion, Mr. Smallman appeared very sensible, knew what he

                                            -7-
was doing, and knew and understood the extent of his property. Mr. Anderson stated that
after signing the will, Mr. Smallman called Ms. Caraway into the office, held her hand, and
expressed to her that he appreciated all she had done for him and told her how much he cared
about her, although he did not mention a will in her presence. Mr. Smallman then left the
office with the will.

       Mr. Anderson’s secretary, Sandra Hardy, testified that she witnessed Mr. Smallman
sign his will. At that time, he appeared to be competent, to understand what he was doing,
to know about his property, and to know who his relatives were.

       Finally, Attorney Beth Boniface testified that she was appointed by the court on
August 6, 2009 to administer the estate. The next day, she met with one of the Smallman
sons and Ms. Caraway at Mr. Smallman’s home, and they looked for a will but could not find
one. She made an inventory of Mr. Smallman’s assets, which totaled over two million
dollars; approximately one million dollars of the assets in annuities and investment accounts
passed outside the estate.

       The Smallman sons also presented the testimony of several witnesses. In addition to
their own testimony, they called as witnesses Kenneth Cole, Bobby Darnell, Teresa Darnell,
Roy Johnson, Peter Balzano, and Susie Smallman.

       Kenneth Cole testified that he was Mr. Smallman’s pastor at Holt’s Baptist Church
in Hamblen County. He had been acquainted with Mr. Smallman for eleven years but was
not asked to perform Mr. Smallman and Ms. Caraway’s marriage ceremony, although he
would have been available to do so. He stated that Mr. Smallman appeared to have affection
for Ms. Caraway, and she was frequently with him when he visited.

        Bobby Darnell was a lifelong friend of Mr. Smallman. He testified that he visited Mr.
Smallman occasionally, last saw him on June 23, 2009, and was not told of the wedding. At
his last visit, Mr. Smallman was very weak and bedfast.

       Bobby Darnell’s wife, Teresa Darnell, testified that she was in Mr. Smallman’s house
the day before the marriage ceremony, that she sat with him for an hour and a half, and that
he was in bad shape and was gasping for breath.

       Roy Johnson testified that he had known Mr. Smallman since 2006, when he met him
through Mr. Smallman’s pawn shop. He stated that he had seen Mr. Smallman on a daily
basis and had noticed that Mr. Smallman had declined both physically and mentally. He also
noted that Mr. Smallman had stopped keeping up with his ledgers and books when he
became ill.

                                             -8-
        Peter Balzano, a business partner with Mr. Smallman in the pawn shop, testified that
Mr. Smallman was frail the last time he saw him, and he noticed a mental and physical
decline. Mr. Balzano stated that Mr. Smallman had been very meticulous about the business
and kept track of things, but not after he became ill. Mr. Balzano stated that after Mr.
Smallman’s first wife died, he was lonely and looking for companionship. Mr. Smallman
enjoyed Ms. Caraway’s company and became very fond of her, and he had talked about
marrying her. However, he did not talk much about the marriage after he got really sick. As
Mr. Smallman’s illness progressed, Ms. Caraway’s care of him increased. Mr. Balzano
stated that when he saw Mr. Smallman three days before the marriage, Mr. Smallman was
bedridden and it was a struggle for him to communicate. In Mr. Balzano’s opinion, Mr.
Smallman could not have participated in a marriage ceremony at that time. When Mr.
Balzano called Mr. Smallman to see if he could visit him on June 24, 2009, Ms. Caraway
advised him that they were expecting company from the church and that it would not be a
good time because it would be too much for Mr. Smallman.

       About ten days before Mr. Smallman died, Mr. Balzano asked Ms. Caraway if Mr.
Smallman had a will, and she told him that there was one and that Mr. Balzano had been
taken care of. She then scheduled an appointment for Mr. Balzano to talk with Mr.
Anderson, who told him that there was a provision in the will that would take care of the
partnership. The day after Mr. Smallman died, Mr. Balzano opened up the pawn shop
business as a sole proprietorship with a new business tax license. He stated that he did so in
order to continue to operate the business. Mr. Balzano stated that Ms. Caraway told him that
she would have given the estate to the Smallman sons but that Jeffrey had chosen not to
attend his father’s funeral, therefore, she felt that she needed to proceed with her case.

        Mark Smallman’s wife, Susie Smallman, testified that Mr. Smallman was a private
person. Mr. Smallman told her that Ms. Caraway did not want to get married because she
did not want him to have her property and she did not want any of his. She stated that toward
the end of Mr. Smallman’s life, she and Mark were with him more frequently. She said that
the last two or three weeks of his life, Mr. Smallman did not communicate a whole lot and
was bedridden. She stated that on the morning after his marriage, Ms. Caraway called and
said she thought he was getting worse and did not know whether she should request hospice
care. Mrs. Smallman and Mark went over and talked with her about that option. Mrs.
Smallman testified that Steve Smallman, Mr. Smallman’s grandson who was in the Navy,
came in town on June 29, 2009, and went to Mr. Smallman’s house in his uniform. She
attested that although Mr. Smallman recognized Steve, he never reached out or said very
much to him. Mrs. Smallman knew that Mr. Smallman enjoyed Ms. Caraway’s
companionship and was appreciative of all that she did for him. Mrs. Smallman stated that
she last saw her father-in-law on July 3, 2009, and Ms. Caraway was taking care of him at
that time. After Mr. Smallman died, she heard Ms. Caraway tell Mark and Jeffrey that she

                                             -9-
and Mr. Smallman had been married and that Ms. Caraway told them “We got married on
paper only, to help Pete [Balzano].”

        Mark Smallman testified that his father kept a detailed accounting in a ledger book
and that in March 2009, the ledger book showed that Mr. Smallman had cash in the amount
of $42,880. Mark noted, however, that the handwriting in the ledger book changed,
especially in May 2009, and that the entries declined and eventually stopped. Mark stated
that Mr. Smallman was a very private man. He knew that his father had a girlfriend, but it
was not a public relationship. He attested that after Mr. Smallman got sick, Ms. Caraway
started going to church with him and spending more time at his house. Mark said he saw Mr.
Smallman about every other day around the time of his death. He visited him a day or two
before the marriage and the day after, but neither his father nor Ms. Caraway mentioned the
marriage. On the day after the marriage, he recalled that Ms. Caraway called him at 7:00 in
the morning and said that she was worried about his father and could not take care of him any
longer and that they would have to do something. Mark and his wife went over to his
father’s house and although they discussed getting a nurse to care for Mr. Smallman, Ms.
Caraway ultimately decided that she was not in favor of hospice care. Mark stated that when
he talked to his father on that day, Mr. Smallman was unable to speak in full sentences and
although he knew who Mark was, he could not carry on a conversation.

       Mark testified that after Mr. Smallman died, he and Ms. Caraway went to the funeral
home to pick out a casket. In the meeting with the funeral director, Ms. Caraway never
mentioned that there had been a marriage ceremony. However, the next day when Mark went
back to the funeral home to take Mr. Smallman’s military uniform, the funeral director
advised him to look at the death certificate when he got it. Mark subsequently found out
about the marriage through Jeffrey, not from Ms. Caraway, contrary to his wife’s testimony.

        Mark stated that before Mr. Smallman’s death, he and Jeffrey had made an
appointment with attorney Jimmy Davis to discuss taking over their father’s property and that
when they kept this appointment on the Thursday after Mr. Smallman died, they learned that
their father had a will and that Ms. Caraway had a copy of it.

       Mark admitted that Ms. Caraway took care of his father and moved into his house and
stayed with him around the clock. He was upset with her because she married his father on
his deathbed and that she wanted to take everything they had worked for. Mark attested that
Ms. Caraway remained in his father’s house until the day after his death and then moved all
of her possessions out of the house. Mark did not find any cash or a coin collection in his
father’s home, nor did he find his father’s will at the house. Mark testified that his father was
very private. He had been unaware that Mr. Smallman had established annuities worth



                                              -10-
approximately one million dollars for his grandchildren and an investment account with Mark
and Jeffrey as beneficiaries.

       Jeffrey Smallman was the final witness to testify. Jeffrey was employed as a civil
engineer in Pennsylvania. He stated that he visited his father once a year for a week in the
summer and talked to him by phone every other week. He testified that when he first met
Ms. Caraway in April 2009, she told him that Mr. Smallman had wanted to marry her and she
had declined. She said that Mr. Smallman had told her he had a lot of money and would give
her a third of everything if she would marry him, but she told him that she did not want
people around town talking that she had married an older man just for his money.

       Jeffrey attested that by April 2009, Mr. Smallman had lost a lot of weight and was
going downhill. When he returned at the end of May, his father had gotten worse and
seemed confused about things. He stated that he spoke with his father by phone on Father’s
Day, June 21, 2009, and that his father seemed confused during that conversation.

        Jeffrey had already applied for medical leave to visit his father beginning July 7, 2009,
when early that morning he received a telephone call from Ms. Caraway informing him that
his father had died. He drove to Morristown the next day. On the evening of his arrival,
Mark told him that all of his dad’s important paperwork, his savings account statements, tax
returns, and things of that nature, were missing. Mark also told him that something “weird”
had happened that day at the funeral home. Jeffrey called Ms. Caraway to come and meet
with them. After her arrival, Ms Caraway advised that she did not know anything about
missing paperwork or Mr. Smallman’s business affairs. She admitted that she had taken Mr.
Smallman to Mr. Anderson’s office in April of that year to have a will prepared, but did not
know whether Mr. Smallman had a will. During the conversation, she told them, “That’s
been bothering me, I don’t like keeping secrets. Your dad and I are married. But we’re just
married on paper to save the pawn shop from the City of Morristown closing it. A surviving
spouse can insist that the pawn shop stay open.”

        Jeffrey attested that the day after this conversation with Ms. Caraway, they learned
that Mr. Smallman had a will dated April 16, 2009. Jeffrey was upset, and he felt betrayed
and was angry with Ms. Caraway. He called her and told her there was a will, and it left
everything to her. He attested that she said she told Mr. Smallman she did not want anything
and that she would “sign anything denying your dad’s estate. I don’t want none of
it.” Jeffrey told her that if the original will was ever found, they would fight it. Jeffrey
testified that he was so upset, he decided to leave and go home and not stay for the funeral.

        At the close of proof, the jury returned a verdict in favor of the Smallman sons on all
issues, specifically concluding that (1) the June 24, 2009 marriage between Mr. Smallman

                                              -11-
and Ms. Caraway was not valid; (2) the lost will of April 16, 2009, should not be established
and admitted to probate; (3) Mr. Smallman was not of sound mind when he executed the will
of April 16, 2009; and (4) the will of April 16, 2009, was obtained through the undue
influence of Ms. Caraway. The trial court entered judgment in accordance with the jury’s
verdict, ruling the marriage between Mr. Smallman and Ms. Caraway invalid, denying and
dismissing Ms. Caraway’s petition to admit the copy of the purported will of April 16, 2009,
to probate, and ruling that the purported will of April 16, 2009, was obtained through the
undue influence of Ms. Caraway, and that Mr. Smallman was not of sound mind at the time
of its execution.

        Ms. Caraway appealed. The Court of Appeals ruled that admission of the evidence
regarding the Blair will, and Ms. Caraway’s real property holdings, was harmless error. The
Court held that the jury’s verdict was supported by material evidence and affirmed the
judgment. In re Estate of Smallman, No. E2010-02344-COA-R3-CV, 2011 WL 6144365,
at *12 (Tenn. Ct. App. Dec. 12, 2011). Judge Charles D. Susano, Jr., filed a dissenting
opinion, concluding that the admission of the evidence of the Blair will and Ms. Caraway’s
real property holdings was harmful error and necessitated a new trial. Id. at *13-14 (Susano,
J., dissenting). We granted Ms. Caraway permission to appeal.

                                        II. Analysis

       Three issues are raised in this appeal: (1) whether the Smallman sons had standing to
contest the validity of Ms. Caraway’s marriage to Mr. Smallman; (2) whether the trial court
abused its discretion in admitting evidence of the Blair will and Ms. Caraway’s real estate
holdings and if so, whether the admission of such evidence was harmful error warranting
reversal and a new trial; and (3) whether there was material evidence to support the jury’s
verdict that Ms. Caraway’s marriage to Mr. Smallman was void.

        We begin with Ms. Caraway’s contention that the Smallman sons did not have
standing to challenge the validity of the marriage between herself and Mr. Smallman. This
is an issue of law, and therefore our review is de novo. Cox v. Shell Oil Co., 196 S.W.3d
747, 758 (Tenn. Ct. App. 2005).

        The Smallman sons challenged the marriage by filing a complaint for declaratory
judgment seeking a ruling that the marriage was void because Mr. Smallman lacked the legal
ability to marry. Citing Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995),
Ms. Caraway argues on appeal that, at most, her marriage to Mr. Smallman was voidable, not
void. She asserts that because the right to challenge the validity of the marriage belonged
solely to herself and abated when Mr. Smallman died, the Smallman sons were without
standing to challenge the marriage. Ms. Caraway, however, failed to raise the standing issue

                                            -12-
in the trial court or the Court of Appeals. An issue not raised at trial may not be raised for
the first time on appeal. Correll v. E.I. DuPont de Nemours & Co., 207 S.W.3d 751, 757
(Tenn. 2006) (quoting Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn.
1991)); see also Tenn. R. App. P. 13(b). Accordingly, the issue is waived. We find no merit
in Ms. Caraway’s contention that she used the wrong label in raising the issue at trial and that
she raised the issue by maintaining that the marriage was presumptively valid.

        Ms. Caraway alternatively argues that the issue is not merely an issue of standing but
is actually an issue of subject matter jurisdiction. Subject matter jurisdiction is non-waivable
and must be considered by an appellate court. Meighan v. U.S. Sprint Commc’ns Co., 924
S.W.2d 632, 639 (Tenn. 1996). Ms. Caraway, relying on Osborn v. Marr, 127 S.W.3d 737,
739 (Tenn. 2004), contends that the issue of standing and the issue of subject matter
jurisdiction are “inexorably intertwined” in this case so that the issue of standing is not
subject to waiver.

        In Osborn, the mother of a child sought to terminate the father’s parental rights based
upon Tennessee Code Annotated section 36-1-113(g)(6), which allows parental rights to be
terminated if the parent is imprisoned for at least ten years for commission of a crime and the
child is less than eight years of age when sentence is entered. We dismissed the case because
the mother did not have standing to seek termination of the father’s parental rights. Osborn,
127 S.W.3d at 741. Citing Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002), we noted that
a court may not terminate parental rights in this state absent specific statutory authority to do
so. Osborn, 127 S.W.3d at 739. Subsection (b) of the termination statute at the time
specifically listed those parties who have standing to terminate parental rights as “[t]he
prospective adoptive parent(s) of the child, any licensed child-placing agency having custody
of the child, the child’s guardian ad litem, a court appointed special advocate (CASA)
agency, [and] the department.” Id. (quoting Tenn. Code Ann. § 36-1-113(b) (2001)). We
determined that “[w]hen a statute creates a cause of action and designates who may bring an
action, the issue of standing is interwoven with that of subject matter jurisdiction and
becomes a jurisdictional prerequisite.” Osborn, 127 S.W.3d at 740. We addressed the issue
of standing even though it had not been raised below because of the statutory provisions
controlling termination of parental rights. Id. Ms. Caraway’s attempt to conflate standing
and subject matter jurisdiction based on our holding in Osborn fails. In the case before us,
there is neither a statute that creates a cause of action nor one that limits the parties who may
bring such an action, and Osborn therefore is distinguishable and inapposite.

       The second issue we address is whether the trial court abused its discretion in
admitting evidence of the Blair will and Ms. Caraway’s real estate holdings and if so,




                                              -13-
whether the admission of such evidence was harmful error warranting reversal and a new
trial.

        Relevant evidence is admissible, and irrelevant evidence is not, unless excepted by
the state and federal constitutions, the Tennessee Rules of Evidence, or other rules or laws
generally applicable to the courts. Tenn. R. Evid. 402. Relevant evidence is defined as
“evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence.” Tenn. R. Evid. 401. The admission of evidence is left to “the sound discretion
of the trial judge,” Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992),
and “[r]elevancy is always a judicial question to be determined according to the issue which
is to be tried.” Randolph v. State, 570 S.W.2d 869, 872 (Tenn Crim. App. 1978) (quoting
Ellison v. State, 549 S.W.2d 691, 696 (Tenn. Crim. App. 1976)). We review a trial court’s
admission of evidence under an abuse of discretion standard and will reverse the decision to
admit evidence only if “the court applied an incorrect legal standard, or reached a decision
which is against logic or reasoning” and admission of the evidence “caused an injustice to
the party complaining.” State v. Gilliland, 22 S.W.3d 266, 270 (Tenn. 2000) (quoting State
v. Shirley, 6 S.W.3d 243,247 (Tenn. 1999)) (internal quotation marks omitted).

        First, we consider the propriety of admitting the Blair will as evidence in this
case. The Blair will designated Ms. Caraway as the sole beneficiary of her mother’s
estate. When the will was executed, Ms. Caraway’s only sibling was deceased, and the will
left nothing to Ms. Caraway’s deceased sibling’s adopted son. At the beginning of trial, the
Smallman sons’ attorney argued that the Blair will was admissible as relevant evidence
showing a common scheme or plan by Ms. Caraway “to be a primary beneficiary in
testamentary documents.” Ms. Caraway’s attorney objected to admission of the Blair will
because it was not relevant and would merely show that Ms. Caraway inherited property from
her mother. Counsel for the Smallman sons represented to the trial court that they would
prove that Ms. Caraway was instrumental in having the will made and that other family
members were excluded to her betterment. The trial court admitted the Blair will into
evidence. The Smallman sons now contend that they proved through Ms. Caraway’s
testimony that at her mother’s request, she took her mother to an attorney for that purpose,
that her mother was terminally ill at the time, and that under the revised will, Ms. Caraway
received all of her mother’s estate and her deceased sibling’s adopted child received
nothing. The Smallman sons argue that these facts constitute “suspicious circumstances”
which parallel the facts in the present matter. These facts, according to the Smallman sons,
show a common scheme by Ms. Caraway to exert undue influence in the testamentary matters
of a terminally ill person to her benefit and to the exclusion of others who would have been
natural objects of such person’s bounty. We disagree.



                                            -14-
       To support their position, the Smallman sons rely on Keith v. Murfreesboro Livestock
Market, Inc., 780 S.W.2d 751 (Tenn. Ct. App. 1989) wherein the Court of Appeals observed
that, as a general rule, a case should be decided only upon the evidence specifically
applicable to it, and a trial court should not admit evidence of an extrinsic transaction having
no connection with the transaction giving rise to suit. Id. at 756. The court, however,
acknowledged exceptions to this general rule, noting that “[e]vidence concerning unrelated
transactions may be used to show matters such as knowledge, absence of mistake or accident,
fraudulent intent, or the existence of a common scheme or plan.” Id. at 757 (emphasis
added). The court ruled that when a party seeks to introduce evidence of extrinsic acts, it
must show more than that there are some elements that the acts have in common, but rather,
that there is substantial similarity. Id. There must be “such a concurrence of common
features that the various acts are naturally to be explained as caused by a general plan of
which they are the individual manifestations.” II John H. Wigmore, Evidence § 304
(Chadbourne rev. 1979) at 249 (emphasis omitted); see also Armstrong v. Bowman, 115
S.W.2d 229, 234 (Tenn. Ct. App. 1937) (“Ordinarily collateral contracts are not relevant, but,
where substantial similarity of conditions exist, the testimony becomes relevant and is
admissible for what it is worth.”) (emphasis added).

         Under cross-examination, Ms. Caraway testified that her only sister, who died four
years before trial, had one child — an adopted son. Six weeks after her sister died, Ms.
Caraway, at her mother’s request, took her to an attorney to have her will made. Her mother
executed a will, leaving all of her estate to Ms. Caraway and nothing to her adopted
grandchild. Ms. Caraway testified she did not tell her mother what to put in the will. The
Smallman sons contend that Ms. Caraway was engaged in a common scheme to unduly
influence both her mother and Mr. Smallman in the executions of their wills. However, there
is not a substantial similarity between the Blair and Smallman wills. The only similarities
are that each testator was suffering from a terminal illness at the time of execution, that Ms.
Caraway transported each testator to an attorney for the execution, that each testator was
close to Ms. Caraway, and that Ms. Caraway was the sole beneficiary under each will. The
testamentary exclusion of an adopted grandson does not equate to the exclusion of two
biological sons; it is not suspicious that Ms. Caraway’s mother left her entire estate to her
only living child, and, in any event, there is nothing in Ms. Caraway’s testimony from which
it could be reasonably inferred that she unduly influenced her mother in the execution of her
will. The mere fact that Ms. Caraway assisted both her mother and Mr. Smallman during
their illnesses by taking them to an attorney so that they might execute their wills does not,
without more, show a common scheme or plan to unduly influence either testator. Rather,
the reasonable inference arising from this fact is that Ms. Caraway took her mother and Mr.
Smallman to their respective attorneys because their debilitated conditions prevented them
from acting without her help. In sum, Ms. Caraway’s testimony fails to present a
concurrence of common features between the circumstances surrounding the execution of

                                              -15-
the wills of her mother and Mr. Smallman. Consequently, the trial court erred in admitting
and allowing the jury to consider the irrelevant evidence regarding the Blair will.

        Next, we address whether the trial court erred in admitting evidence regarding Ms.
Caraway’s real property holdings. In their pretrial exhibit list, the Smallman sons included
“[a]ll deeds and wills wherein Linda Caraway has gained property.” In response, Ms.
Caraway filed a motion in limine requesting that the trial court prohibit the Smallman sons
from introducing any evidence concerning her financial condition, including but not limited
to her real estate holdings, because the evidence was irrelevant and prejudicial. The trial
court denied Ms. Caraway’s motion and permitted the Smallman sons to introduce evidence
concerning Ms. Caraway’s real estate holdings.

        At trial, the Smallman sons introduced and questioned Ms. Caraway about a two-page
list provided by her in response to interrogatories showing twenty-six pieces of real property
with a purchase price assigned to all but two, reflecting a total purchase price of $1,812,155.

        As a general matter, evidence of a party’s financial condition is irrelevant and
therefore inadmissible at trial.4 The rights and liabilities of the parties should be adjudged
on the basis of their past conduct and legal relationship rather than their financial
conditions. Evidence of a party’s financial condition is usually not admissible because it may
create a risk that a jury will ground its decision on prejudice or sympathy and not on the
merits of the case. See Herstein v. Kemker, 94 S.W.2d 76, 94 (Tenn. Ct. App. 1936); 2
Clifford S. Fishman, Jones on Evidence, § 13:25, at 522 (7th ed. 1994). There are exceptions
to this general rule of inadmissibility. For instance, evidence of a defendant’s financial
condition is relevant and admissible in assessing punitive damages. Odom v. Gray, 508
S.W.2d 526, 533 (Tenn. 1974). But evidence of the defendant’s financial condition is only
admissible in the bifurcated phase of the trial devoted to determining the amount of punitive
damages. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). During the phase
of the trial pertaining to liability or the amount of compensatory damages, proof of the
defendant’s “financial affairs, financial condition, or net worth is not admissible.” Id.; see
also Emerson v. Oak Ridge Research, Inc., 187 S.W.3d 364, 373 (Tenn. Ct. App. 2005).

      Another exception to the rule also exists in the context of a will contest when such
evidence is determined to be relevant and admissible in deciding whether a will is just and


        4
          We are not presented with the question of whether information regarding Ms. Caraway’s financial
status was properly subject to discovery in this case. “[D]iscoverability and admissibility at trial are separate
matters,” Wilson v. State, 367 S.W.3d 229, 236 (Tenn. 2012), and inadmissible evidence may be discoverable
if it “appears reasonably calculated to lead to the discovery of admissible evidence.” Tenn. R. Civ. P.
26.02(1); Thomas v. Oldfield, 279 S.W.3d 259, 262 (Tenn. 2009).

                                                      -16-
equitable as related to the question of fraud and undue influence. For example, evidence that
a natural heir excluded as a beneficiary was wealthy when the testator executed his or her
will constitutes circumstantial evidence relevant in showing that the testamentary disposition
was not suspicious and therefore less likely to have been the result of undue influence. Estes
v. Perkins, 238 S.E.2d 423, 424 (Ga. 1977); see also 2 Clifford S. Fishman, Jones on
Evidence, § 13:25, at 524 (7th ed. 1994). On the other hand, “evidence of the financial
condition of persons who would not benefit from a finding of undue influence is properly
excluded.” 95 C.J.S. Wills § 392 (2011); see also McGahee v. Phillips, 84 S.E.2d 19, 21 (Ga.
1954) (finding that trial court properly denied admission of evidence of mother’s and sister’s
financial circumstances where if probate of will were denied on grounds of undue influence,
mother and sister would receive no benefit). Ms. Caraway would not have benefitted from
a finding that Mr. Smallman’s will leaving everything to her was the result of her undue
influence; evidence of her financial condition was irrelevant to the issues in this case and was
improperly admitted.

        Having concluded that the trial court erred in admitting evidence related to the Blair
will and Ms. Caraway’s real property holdings, we must now determine whether the
admission was harmful and therefore, grounds for reversal. When evidence is improperly
admitted by the trial court, reversal is only called for if the error affected the results of the
trial—“[w]hether it is sufficiently prejudicial to require reversal depends on the substance
of the evidence, its relation to the other evidence, and the peculiar facts and circumstances
of the case.” Keith, 780 S.W.2d at 758 (citing Wheeler v. State, 539 S.W.2d 812, 814 (Tenn.
Crim. App. 1976)). Errors in the admission of evidence are harmful and call for reversal
when “considering the whole record, error involving a substantial right more probably than
not affected the judgment or would result in prejudice to the judicial process.” State v.
Gomez, 367 S.W.3d 237, 249 (Tenn. 2012) (quoting Tenn. R. App. P. 36(b))5 ; see also Flax
v. DaimlerChrysler Corp., 272 S.W.3d 521, 543 (Tenn. 2008).

       In conducting a harmless error analysis in a jury case, it is incumbent upon the
reviewing court to carefully examine the whole record in determining whether admission of
the evidence more probably than not influenced the jury’s verdict.6 The reviewing court


        5
          Tennessee Rule of Appellate Procedure 36(b) provides in pertinent part that “[a] final judgment
from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole
record, error involving a substantial right more probably than not affected the judgment or would result in
prejudice to the judicial process.”
        6
         In response to the suggestion that it is not possible to exactly ascertain what the members of a jury
were thinking when they rendered their verdict, one oft-cited legal treatise comments as follows:

                                                                                                (continued...)

                                                    -17-
should consider the substance of the wrongly admitted evidence and its relation to other
evidence in the case in the context of the case’s peculiar facts and
circumstances. Blankenship v. State, 410 S.W.2d 159, 161 (Tenn. 1966). While it should
not be presumed that the jury members were influenced by passion and prejudice as a result
of the inadmissible evidence, “it is presumed that the jury considered whatever evidence was
laid before them.” Hager v. Hager, 66 S.W.2d 250, 257 (Tenn. Ct. App. 1933). In assessing
the amount of weight a juror probably would have placed on the erroneously admitted
evidence, the reviewing court should take into account whether the facts present a close case
or whether the point at issue is not clearly established by the proof. Id. A finding of either
supports the conclusion that introduction of the evidence was harmful error. Id. The court
should also bear in mind that the mere fact that there is sufficient evidence in the record to
support the jury’s verdict does not necessarily render the admission of wrongfully admitted
evidence harmless as it cannot be known what weight the jury assigned to the inadmissible
evidence in reaching its verdict. Blankenship, 410 S.W.2d at 161. If the reviewing court
determines, however, that the fact the inadmissible evidence was submitted to establish is
clearly established by other evidence in the case that is competent and properly admitted, the
court ordinarily should hold the error harmless. Love v. Smith, 566 S.W.2d 876, 879 (Tenn.
1978). Further, the reviewing court should examine the degree to which the wrongly
admitted evidence was emphasized by its proponent during trial as an indicator of its likely
prominence in the minds of the jurors, noting in this regard whether the evidence was
mentioned by counsel in opening statement or closing argument. Cf. State v. Young, 196
S.W.3d 85, 107 (Tenn. 2006). The reviewing court should not focus on whether other
evidence supported the jury’s verdict and whether the jury reached a correct result. Rather,
implementing the considerations we have here described and any other appropriate
considerations indicated by the specific facts of a case, the court should determine whether
the improperly admitted evidence more probably than not prejudiced the jury in its verdict
and thereby unfairly tainted the decision-making process.




       6
           (...continued)
                   It may be true that we are never able to see into the heart of any man, but
                   of course the law of evidence routinely supposes that inferences about
                   motivations, thoughts, and the like may be drawn and that the behavior of
                   human beings may be predicted. . . . [I]f the record shows little or nothing
                   about the jurors in the case, the appellate court should probably assume that
                   the jury in question was a “typical” jury and would have reacted in a
                   fashion typical of such a jury.

I John H. Wigmore, Evidence § 21 (Tillers rev. 1983).


                                                      -18-
      The three-member panel of the Court of Appeals agreed that evidence regarding the
Blair will and Ms. Caraway’s real property holdings was irrelevant, but the majority
concluded that the admission of such evidence was harmless. Judge Susano disagreed,
concluding as follows:

                In this close case, the jury pitched a “shutout”—everything for
                the sons and nothing for Ms. Caraway.                Under the
                circumstances, I cannot help but believe that the jury, at least in
                part, concluded (1) that Ms. Caraway was a “gold digger” who
                did not need the estate of the deceased and (2) that, in securing
                the deceased’s signature on a will, she had repeated a “trick”
                that she had refined when she persuaded her mother to execute
                a will favorable to Ms. Caraway and against the interests of
                some of her kin. In other words, I believe the sons of the
                deceased were successful in their efforts to severely prejudice
                the position of Ms. Caraway with irrelevant evidence.

Smallman, 2011 WL 6144365 at *13 (Susano, J., dissenting) (footnote omitted). We agree
with Judge Susano’s conclusions.

        From our review of the record, the facts presented a close case for the jury. It is
apparent that the Smallman sons intended for the jury to view Ms. Caraway as a wealthy
woman who was intent on acquiring their father’s estate through manipulation and subterfuge
just, as they insinuate, she had acquired the estate of her mother. Although the Blair will did
not establish such a common scheme or plan, its introduction more probably than not was
sufficient to mislead the jury to that unsubstantiated conclusion. Further, the evidence that
Ms. Caraway was the sole beneficiary of her mother’s estate under the Blair will and the
holder of real estate with a total purchase price in excess of $1,800,000 more probably than
not prejudiced the jury against Ms. Caraway, compelling the conclusion that because of her
wealth, she did not need Mr. Smallman’s estate and instead his two sons should inherit
it. While no proof was presented as to the value of the estate Ms. Caraway received under
the Blair will, the fact that she was the sole beneficiary could have implied to the jury that
she received a substantial inheritance. The Smallman sons’ intention in introducing this
evidence is apparent from statements made by their attorney several times during the trial,
charging that Ms. Caraway was “playing with house money” 7 and had nothing to lose by


        7
          Counsel’s “playing with house money” analogy is inapt — “playing with house money” is a phrase
used in the context of casino gambling. It refers to a player who is staking money won from the casino and
therefore, is not risking any of the money with which he or she came into the game. That would be the
                                                                                             (continued...)

                                                   -19-
seeking to gain Mr. Smallman’s estate. In this regard, counsel for the Smallman sons stated
in opening argument “basically, what we’re dealing with in her mind, it’s a million-dollar
lottery; and she’s playing with house money. She’s got not one thing to lose. She can either
get it all, and it costs her nothing. It costs her nothing to try.” Again, in questioning Ms.
Caraway about her mother’s will, counsel for the Smallman sons asked Ms. Caraway, “Now,
it’s fair to say that you’re basically – to use a term I think we can all understand – you’re
playing with house money here, aren’t you? You don’t have anything to lose in coming here
today and trying to get a million dollars, do you?” Finally, in closing argument, counsel
stated as follows:

                I asked Mrs. Caraway, I said, “You don’t have anything to loose
                [sic].” And she got upset when I asked her that question. Let’s
                think about it. What did she have to lose? She either gains
                $950,000; or she says she’s out some attorney’s fees. So she’s
                got nothing to lose to just try to pull this sham off.”

       The Blair will was presented for the purpose of portraying Ms. Caraway as a bad
person—“a gold-digger” who had engaged in the same activity before as a wealthy woman
who did not need any more money. Estate of Smallman, 2011 WL 6144365, at *13 (Susano,
J., dissenting). This evidence more probably than not prejudiced the jury to that
conclusion. Our careful consideration of the record as a whole also confirms that more
probably than not the jury was substantially swayed by the improperly admitted evidence
such that the jury’s verdict was so tainted as to warrant reversal and a new trial.

        In determining that the jury’s verdict was tainted by the improperly admitted evidence,
it is necessary and appropriate that we consider the entire record and not just the issues
specifically raised on appeal. First, we consider the proof presented as to whether the
marriage should be ruled invalid because Mr. Smallman was without the requisite mental
capacity to marry at the time of the marriage. While a regularly solemnized marriage is
presumed valid, that presumption is rebuttable upon presentation of “cogent and convincing
evidence” otherwise. Guzman v. Alvares, 205 S.W.3d 375, 380 (Tenn. 2006). The “cogent
and convincing” standard of proof and the “clear and convincing” standard are the same. See
Louis Dreyfus Corp. v. Huddleston, 933 S.W.2d 460, 467 n.5 (Tenn. Ct. App. 1996) (“The


        7
          (...continued)
situation here if Ms. Caraway were paying attorney fees to defend her alleged rights to Mr. Smallman’s estate
with money from the estate, but Ms. Caraway does not yet have any money from the Smallman
estate. Hence, the phrase is not applicable. Nevertheless, the phrase also indicates that Ms. Caraway does
not need the money from the Smallman estate and, in that sense, it accentuated the irrelevant evidence of her
financial status.

                                                    -20-
‘clear and cogent’ standard is essentially similar to the ‘clear and
convincing’ standard.”). Clear and convincing evidence is evidence establishing that the
facts asserted are highly probable; it is evidence that leaves “‘no serious or substantial doubt
about the correctness of the conclusions drawn’” therefrom. Teter v. Republic Parking Sys.,
Inc., 181 S.W.3d 330, 341 (Tenn. 2005) (quoting Hodges, 833 S.W.2d at 901 n.3). Like any
other civil contract, a marriage may be voided “for want of sufficient mental capacity.” Cole
v. Cole, 37 Tenn. (5 Sneed) 57 (1857). Accordingly, a party may be found incapable of
contracting to marry for want of mental capacity where it is shown by clear and convincing
proof that at the time of the marriage ceremony, such party did not understand the special
nature of the marriage contract and the rights and obligations it creates and therefore, did not
freely and intelligently consent to the marriage. See Nave v. Nave, 173 S.W.3d 766, 774
(Tenn. Ct. App. 2005). It is the degree of mental incapacity at the exact time of the marriage
that controls as to its validity, and consequently the party’s mental condition before or after
the ceremony is generally immaterial, “except insofar as it may be evidential of the mental
incapacity of the party at the time the alleged contract was made.” 55 C.J.S. Marriage § 15
(2009) (footnotes omitted). Although it is the party’s mental capacity precisely at the time
of the wedding ceremony that is the proper focus of inquiry, in the absence of indisputable
evidence that the party was mentally competent at the time of the ceremony, a jury might, of
course, reasonably infer mental incapacity based on evidence of a party’s mental condition
in close temporal proximity to the ceremony. See Conaway v. N.Y. Life Ins. Co., 102 S.W.2d
66, 68 (Tenn. 1937) (“[I]t is the province of the jury not only to determine what are the
proven facts, but what are the legitimate inferences to be drawn therefrom.”). In sum, the
Smallman sons had the burden of presenting clear and convincing evidence from which it
could at least be reasonably inferred that their father lacked the mental capacity to marry Ms.
Caraway on June 24, 2009. Our review of the evidence shows that properly admitted
evidence in this case failed to meet the clear and convincing standard, and more probably
than not the jury was strongly prejudiced by the irrelevant and improperly admitted evidence
discussed above.

        We begin by considering the testimony of Mark Smallman. Mark testified that he saw
his father every other day in 2009. He testified regarding Mr. Smallman’s ledger book,
stating “we always called it ‘Dad’s Bible’” and that Mr. Smallman “wrote in it every
day . . . . [E]very little thing he bought and sold was in this book. Every last penny was in
this book.” The ledger book shows multiple entries on each page and reflects accounting
activity as to a variety of financial matters beginning in January 1991. Mark testified that
after January 2009, a diminishing number of entries were recorded and a deterioration in the
quality of Mr. Smallman’s handwriting was observable. By May 2009, there are very few
entries and no entries after that month. The Smallman sons apparently rely on the
diminishing ledger book activity as proof that their father’s mental condition was
progressively deteriorating and that by June 2009, he no longer possessed the mental capacity

                                              -21-
required to enter into a valid marriage contract. However, while the failure to enter
information in a ledger book may be consistent with mental decline, it does not constitute
clear and convincing evidence of such. On cross-examination, Mark agreed that his father’s
prognosis after March 2009 was not good and that it would not be unusual for a man who has
terminal cancer to lose interest in keeping his ledger book. As further proof of Mr.
Smallman’s incapacity to marry, Mark recounted an incident involving Mr. Smallman and
Mark’s son, Steven. Mark testified that Mr. Smallman loved the military, and was proud that
Steven had joined the Navy after high school. Mark stated that Mr. Smallman had taken
great interest when Steven had come home for Christmas 2008. However, when Steven,
wearing his uniform, next visited his grandfather on June 29, 2009, five days after the
wedding, Mr. Smallman merely said “in a real low voice ‘he looks good’ and that was
it.” This testimony as to Mr. Smallman’s apparently muted reaction to a visit from his
grandson certainly does not rise to the level of clear and convincing evidence of mental
incapacity to enter into a marriage contract. Finally, while Mark also specifically testified
that his father was “not in his right mind” when he married Ms. Caraway, he did not explain
what led him to that conclusion. When asked what he did to find out if Mr. Smallman was
“in his right mind” on the day of the wedding, Mark stated that he “didn’t do anything.”

        Jeffrey Smallman testified that when he visited his father in April 2009, he knew his
father was declining, and that, in his opinion, his father was not mentally competent. When
Jeffrey returned for another visit at the end of May 2009, Mr. Smallman had gotten worse,
had lost more weight, and was not eating or drinking. Jeffrey testified that on this latter visit,
Mr. Smallman asked Jeffrey to take him to the pawn shop. During the hour they were there,
several people gave Mr. Smallman envelopes containing money, and that when Jeffrey and
his father returned to Mr. Smallman’s residence, Mr. Smallman “started going through his
pockets and starts putting all this money – like ‘What’s this for?’ He didn’t know what all
these payments were for.” Standing alone, Mr. Smallman’s question regarding the payments
is ambiguous, and its import is unclear, it never having been established at trial what the
payments were for and whether Mr. Smallman should have known what they represented. In
any event, Mr. Smallman’s expression of confusion regarding the nature of the payments he
received that day in May 2009 does not constitute clear and convincing evidence that he was
not competent several weeks later to marry Ms. Caraway. Jeffrey also testified that three
days before the wedding, he called his father on Father’s Day 2009. Jeffrey had sent Mr.
Smallman a new ledger book as a present and asked Mr. Smallman if he had received
it. Jeffrey testified that Mr. Smallman indicated that he wasn’t aware that Jeffrey had sent
the book and that he said something else that Jeffrey didn’t understand. Again, this
testimony does not constitute clear and convincing evidence of mental incapacity.

      The Smallman sons also presented the testimony of Mr. Smallman’s lifelong friend,
Robert Darnell, and his wife, Teresa, to establish Mr. Smallman’s mental incapacity at the

                                              -22-
time of the marriage. Mr. Darnell stated that he visited Mr. Smallman occasionally and that
he last saw Mr. Smallman on the evening of June 23, 2009, after Ms. Caraway called and
requested that he come over. Mr. Darnell attested that Mr. Smallman was “pretty much”
bedridden at the time, that Mr. Smallman’s voice was “very, very weak” and that he could
not understand what little Mr. Smallman said. It is not disputed that Mr. Smallman was
physically debilitated and the fact that his voice was weak and he was difficult to understand
is not proof that he was mentally incapacitated. Mr. Darnell’s testimony does not imply that
Mr. Smallman was difficult to understand because he was irrational. Belying that
implication, Mr. Darnell testified that he “didn’t want [Mr. Smallman] to have to repeat
anything,” indicating that Mr. Darnell could not understand what Mr. Smallman said because
he could not hear him, not because Mr. Smallman was being nonsensical. Finally, Mr.
Darnell testified that, in his opinion, Mr. Smallman could not have participated without
assistance in a wedding ceremony. This testimony does not show that Mr. Smallman lacked
the mental capacity to enter into a marriage contract and when considered in the context of
Mr. Darnell’s other testimony, only shows that Mr. Smallman would have required physical
assistance to get through the ceremony. Ms. Darnell, who accompanied her husband on his
visit with Mr. Smallman on June 23, 2009, testified that Mr. Smallman was gasping for
breath during the visit and that she was unable to really communicate with him. Ms.
Darnell’s testimony, like her husband’s, does not indicate that Mr. Smallman was mentally
infirm.

       Finally, on the issue of Mr. Smallman’s mental capacity to marry, the Smallman sons
offered the testimony of an employee at Mr. Smallman’s pawn shop, Mr. Johnson, and of Mr.
Smallman’s business partner, Peter Balzano. Mr. Johnson stated that he noticed a decline
in Mr. Smallman’s mental health after he was diagnosed with lung cancer, that he “was
having a problem understanding things,” and that one day, Mr. Smallman was looking for
his ledger book and could not find it. This rather vague and nonspecific testimony does not
eliminate serious or substantial doubt as to whether Mr. Smallman was mentally incapable
of understanding and entering into the marriage contract. Mr. Balzano testified that in early
March 2009, Mr. Smallman, who Mr. Balzano described as “meticulous,” allowed the pawn
shop’s Federal Firearms License to lapse for a couple of days. Mr. Balzano also stated that
he observed a mental decline in Mr. Smallman when he visited the shop with Jeffrey,
presumably in late May 2009. Neither of these observations constitutes evidence from which
a jury could reasonably infer that on June 24, 2009, Mr. Smallman was so mentally
incapacitated that he could not have knowingly entered into a marriage. When asked about
Mr. Smallman’s condition when Mr. Balzano visited him three days before the marriage, Mr.
Balzano merely responded that Mr. Smallman was bedridden, that “he couldn’t talk
well”—that it was a “struggle for him to communicate”— and that in his opinion, Mr.
Smallman could not have participated in a marriage ceremony at that time. Significantly, Mr.



                                             -23-
Balzano did not testify that he observed Mr. Smallman to be suffering from mental
incompetence on that date.

       Countering the sparse proof presented by the Smallman sons as to Mr. Smallman’s
mental status when he married Ms. Caraway, Ms. Caraway submitted the following evidence
in support of her assertion that Mr. Smallman was lucid and well aware of what he was doing
when he married Ms. Caraway.

        Mr. Smallman’s first cousin, Betty Collins, witnessed the wedding and testified that,
in her opinion, Mr. Smallman wanted to marry Ms. Caraway, knew what he was doing, and
was not suffering from any mental decline. Ms. Collins observed that on the day of the
ceremony, Mr. Smallman was declining physically and his voice was weak. She did not,
however, associate Mr. Smallman’s physical condition with any lack of understanding and
recalled that he responded affirmatively during the wedding vows.

        Attorney Bill Foutch testified that he represented Mr. Smallman as a creditor in a
bankruptcy proceeding filed shortly before the wedding. Mr. Smallman held a deed of trust
and note on real property owned by the debtors and when Mr. Smallman began foreclosing
on the property, the owners filed a Chapter 13 bankruptcy petition. Mr. Foutch stated that
he explained to Mr. Smallman the distinction between a Chapter 13 and a Chapter 7
bankruptcy and that Mr. Smallman was able to comprehend his explanation and made
comments consistent with an accurate understanding of his explanation. Mr. Foutch further
stated that on the day of the wedding, Mr. Smallman signed a proof of claim for filing in the
bankruptcy case, that he and Mr. Smallman had discussed the claim just a week or ten days
before that, and that Mr. Smallman was able to convey information necessary to complete
the claim pertaining to both the underlying note and tax and insurance payments that he had
made on the property. Mr. Foutch also testified that on the day of the wedding ceremony,
he went to Mr. Smallman’s residence to execute the affidavit for the marriage license and
that after passing pleasantries with Mr. Smallman, he asked Mr. Smallman if he knew why
he was there and that Mr. Smallman answered, “Yeah, to seal the deal.” When Mr. Foutch
asked Mr. Smallman what he meant by “sealing the deal,” Mr. Smallman responded, “Being
man and wife.” Mr. Smallman signed the affidavit in Mr. Foutch’s presence, and Mr. Foutch
concluded that Mr. Smallman understood what he was doing when he did so and knew what
he was doing when he married Ms. Caraway.

       Ross Carmack, who performed the wedding ceremony, testified that Mr. Smallman
originally told him that he wanted to marry Ms. Caraway eighteen months before the
wedding and that even after his second round of chemotherapy, Mr. Smallman had continued
to express his desire to marry her. Mr. Carmack stated that on the day of the wedding, he had
a private conversation with Mr. Smallman, and Mr. Smallman told him that he wanted to

                                            -24-
marry Ms. Caraway. Mr. Carmack testified that even though Mr. Smallman was physically
ill and his voice was weak, on the day of the wedding Mr. Smallman was “very alert
mentally,” that he knew what he was doing when he married Ms. Caraway, and that it was
what he wanted to do.

        The Smallman sons’ assertion that Mr. Smallman was not mentally competent to enter
into his marriage to Ms. Caraway was contradicted by the testimony of James H. Gose, with
whom Mr. Smallman had gone to high school and with whom he owned rental property. Mr.
Gose testified that four or five days before Mr. Smallman died, the two of them were
discussing a plumbing problem in one of the apartments they owned, that Mr. Smallman was
concerned and asking questions, and that he never felt that Mr. Smallman was mentally
incapable of discussing matters with him. Finally, Ms. Caraway testified that Mr. Smallman
wanted to marry her, that they loved each other, and that on the day of the ceremony he knew
what he was doing.

       Viewing the record as a whole, it is clear that the Smallman sons presented little, if
any, proof from which a jury could have reasonably inferred that Mr. Smallman was not
mentally competent to marry Ms. Caraway on June 24, 2009. Certainly, what proof they
offered did not amount to clear and convincing evidence. Ms. Caraway, on the other hand,
presented evidence that on the day of the wedding Mr. Smallman was mentally competent
and fully aware of what he was doing. It is apparent that more probably than not the jury was
so prejudiced against Ms. Caraway by the admission of the irrelevant evidence regarding the
Blair will and Ms. Caraway’s real property holdings that it found against her on the issue of
Mr. Smallman’s capacity to marry despite the absence of supporting relevant evidence.

        The jury also found that Mr. Smallman was not of sound mind when he executed the
will of April 16, 2009. After careful review of the record, we conclude that as to this issue
also, the evidence was insufficient to support a verdict in favor of the Smallman sons and,
rather, preponderates in favor of Ms. Caraway. It is apparent that the jury more probably
than not was prejudiced by the admission of the irrelevant evidence of the Blair will and Ms.
Caraway’s real property holdings in finding against Ms. Caraway on this issue.

        A will may be challenged on the theory that at the time of the will’s execution the
testator lacked sufficient mental capacity:

                      The law requires that the testator’s mind, at the time the
              will is executed, must be sufficiently sound to enable him or her
              to know and understand the force and consequence of the act of
              making the will. The testator must have an intelligent
              consciousness of the nature and effect of the act, a knowledge

                                             -25-
              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.

In re Estate of Elam, 738 S.W.2d 169, 171 (Tenn. 1987) (citations omitted).

        If a testator is sick and infirm, as was Mr. Smallman in April 2009, the proponent of
the will bears the burden of showing by a preponderance of the evidence that the testator had
testamentary capacity at the time of execution. Street v. Waddell, 3 S.W.3d 504, 506 (Tenn.
Ct. App. 1999). A lesser degree of mental capacity is required to execute a will than is
required to execute a contract, Owen v. Summers, 97 S.W.3d 114, 125 (Tenn. Ct. App. 2001),
and we have concluded that Mr. Smallman had sufficient mental capacity to enter into a valid
marriage contract on June 24, 2009, over two months after he executed the April 16, 2009
will. It is, however, the time of the will’s execution that is the proper point of focus in
assessing testamentary capacity. While proof of a testator’s mental capacity “before and after
making the will, if not too remote in point of time may be received as bearing upon that
question [of testamentary capacity,]” “the mental condition of the testator at the very time of
executing the will is the only point of inquiry.” Estate of Elam, 738 S.W.2d at 172 (quoting
Am. Trust & Banking Co. v. Williams, 225 S.W.2d 79, 84 (Tenn. Ct. App. 1948)). We
recognize the possibility that mental capacity may fluctuate in an individual who is
debilitated and terminally ill. But we will not assume that Mr. Smallman knew and
understood “the force and consequence of the act of making [his] will” at the time of its
execution on the basis of evidence that he later had the mental capacity required to enter into
a marriage contract. We note that a lay witness’s opinion is admissible on the issue of
testamentary capacity if “based on details of conversations, appearances, conduct or other
particular facts from which the [testator’s] state of mind may be judged.” Estate of Elam,
738 S.W.2d at 172.

      Ms. Caraway presented the following unrebutted testimony of attorney Clinton
Anderson to show that, on April 16, 2009, Mr. Smallman possessed the mental capacity
necessary to execute his will. First, Mr. Anderson’s testimony shows that Mr. Smallman
gave precise, detailed instructions as to how the will should be drafted:

              Q. [E]xplain the process you went through in preparing [Mr.
              Smallman’s] will.



                                             -26-
                 A. . . . [Mr. Smallman] told me what he wanted. . . . He told me
                 that I should list in here some people that owed him some
                 money so that when he was gone, his executors would know
                 that. He also let me know that he was very ill. . . . He actually
                 went into quite a bit of detail without my having to question him
                 too much. I usually have to question people to get this kind of
                 detail out; but I did not him, he was very intelligent and very
                 business-like.

       Mr. Anderson further testified that, in preparing a will for a client, he endeavors to
determine the client’s competency by asking the client questions about the past and present,
and the client’s health and property. He then asks the client how he or she wants the property
disposed of, stating “I pay close attention to that because you have to know not only if they
understand the nature and extent of their property but whether or not they have enough sense
to know who they want their beneficiaries to be and why.” Mr. Anderson testified as follows
that he specifically sought to ascertain Mr. Smallman’s testamentary capacity on April 16,
2009:

                 Q. Did you talk with Mr. Smallman to ascertain certain things
                 about his mental competency?

                 A. I did. . . . I asked him some questions about the size of his
                 estate and what sort of things he had in it, and I asked him what
                 he wanted to do, of course. Since almost everything he was
                 leaving to Linda Caraway, I didn’t have to go into much detail
                 about what property he owned; but he answered very readily and
                 succinctly and clearly and knew what he wanted to do. I was a
                 little worried that he wasn’t leaving anything to his sons; so, I
                 questioned him about that. . . . I asked him why he wasn’t
                 leaving his sons anything, and he said he had already taken care
                 of them with certificates of deposits and maybe accounts upon
                 which he had their names.8 And I concluded from his demeanor




        8
          John Brice testified that Mr. Smallman had named Mark and Jeffrey as equal beneficiaries under
an annuity account with Sun Life Financial of Canada divisible at Mr. Smallman’s death. Beth Boniface,
the court appointed administrator of Mr. Smallman’s estate, testified that the monies in this account, totaling
approximately $158,000.00, were divided between the Smallman sons. Ms. Boniface also testified that Mr.
Smallman had additionally provided for approximately one million dollars to pass to his grandchildren
outside of the will.

                                                     -27-
              and his responses and his past history and from that answer that
              he knew what he was doing.

Mr. Anderson testified that when Mr. Smallman executed his will on April 16, 2009, Mr.
Smallman knew and understood what he was doing, the extent of his property, and who
would be the normal, expected objects of his bounty. In sum, Mr. Anderson concluded that
he has “no doubt in [his] mind as to [Mr. Smallman’s] mental capabilities or knowledge of
his property on [April 16, 2009]” and that Mr. Smallman was competent to execute his will.

        Mr. Anderson’s testimony was corroborated by the testimony of his secretary, Sandra
Hardy, who, along with Mr. Anderson, witnessed Mr. Smallman’s will on April 16. She
testified that she asked Mr. Smallman if he thought his sons would be angry that the will left
everything to Ms. Caraway and he responded that “they shouldn’t be because I’ve left their
names on accounts.” Ms. Hardy attested that on the day he executed the will, Mr. Smallman
appeared to be competent, and appeared to understand what he was doing and to know about
his property and about relatives and people who might be expected to be his heirs.

       In addition to the testimony of attorney Anderson and his secretary, John Brice, an
employee of SunTrust Investment Services, also testified he had known Mr. Smallman as a
friend and client for more than ten years and testified that he talked with Mr. Smallman
approximately one week before Mr. Smallman executed his will. At that time, he and Mr.
Smallman conducted banking business requiring that Mr. Smallman sign documents to effect
an account transfer. Mr. Brice stated that he “tried to take particular note of just how [Mr.
Smallman] appeared and how his demeanor was that day,” that he felt that Mr. Smallman was
competent and noted Mr. Smallman’s “quick, ready smile” and that “his signature appeared
firm and compared virtually identically to any previous signatures.” Although Mr. Brice
observed that Mr. Smallman was in a weakened physical condition, he did not sense any
depth of mental decline.

       Finally, James Gose, who saw Mr. Smallman up until the time of his death testified
that he never considered Mr. Smallman to be mentally incompetent.

       Confronted with all this testimony, particularly the unrebutted testimony of attorney
Anderson and his secretary, the Smallman sons failed to present any evidence showing that
on April 16, 2009, Mr. Smallman lacked the required mental capacity to execute his
will. They failed to prove that he did not know and understand the force and consequence
of the act of making the will and that he did not 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. Cf. Estate of Elam, 738 S.W.2d at 171. Accordingly, we
conclude that, more probably than not, the jury was led to its verdict in favor of the Smallman

                                             -28-
sons not on the basis of relevant probative evidence, but rather on the basis of the irrelevant
and prejudicial evidence of the Blair will and Ms. Caraway’s real property holdings.

        The jury rendered a verdict in favor of the Smallman sons on the issue of Mr.
Smallman’s capacity to marry despite the absence of clear and convincing evidence in
support of that verdict. The jury also rendered a verdict in favor of the Smallman sons on
the issue of testamentary capacity although the evidence strongly preponderated in favor of
Ms. Caraway on that issue. We also conclude that the inadmissible evidence of both the
Blair will and Ms. Caraway’s substantial real property holdings established the impression
that Ms. Caraway was a wealthy woman who did not need Mr. Smallman’s estate. This
impression was emphasized by counsel’s comments that Ms. Caraway was “playing with
house money” and had nothing to lose. In sum, the erroneous admission of evidence
pertaining to the Blair will and Ms. Caraway’s real property holdings more probably than not
affected the jury’s verdict. Accordingly, the admission of such evidence was harmful and
warrants reversal and a new trial.9 Gomez, 367 S.W.3d at 249; Tenn. R. App. P. 36(b).

       The final issue raised by Ms. Caraway as to whether there was material evidence to
support the jury’s verdict that the marriage was void is pretermitted by our conclusion that
the jury’s verdict should be reversed and this case remanded for new trial as a result of the
admission of irrelevant and harmful evidence.




        9
           The jury also concluded that the April 16, 2009 will was obtained through Ms. Caraway’s undue
influence and that the will should not be established and admitted to probate. We need not determine the
harmful effect of the inadmissible evidence as to the jury’s verdict on these two issues; our conclusion that
the inadmissible evidence pertaining to Ms. Caraway’s real estate holdings and the Blair will was harmful
as to the issues of Mr. Smallman’s capacity to marry and testamentary capacity suffices to show that a new
trial is warranted in this case. On the issue of undue influence, however, we note that a jury may not properly
consider the issue of undue influence where it has determined that the testator lacked testamentary capacity:

                 [S]hould a jury in a case where both [the issue of testamentary capacity and
                 the issue of undue influence] were present, find the deceased to be of
                 unsound mind, the issue of undue influence is never reached. Undue
                 influence presupposes a mind of testamentary capacity. Acts of insane
                 minds or minds lacking testamentary capacity are void regardless of
                 influence, undue or not.

Parham v. Walker, 568 S.W.2d 622, 624 (Tenn. Ct. App. 1978); see also Keasler v. Estate of Keasler, 973
S.W.2d 213, 219 (Tenn. Ct. App. 1997). Having found that Mr. Smallman was without testamentary
capacity, the jury was precluded from also finding that his will was obtained through Ms. Caraway’s undue
influence.

                                                     -29-
                                            III. Conclusion

        For the reasons stated herein, we hold that Ms. Caraway waived her argument that the
Smallman sons were without standing to contest the validity of her marriage to Mr.
Smallman. We further hold that the evidence regarding the Blair will and Ms. Caraway’s
real estate holdings was irrelevant and prejudicial and that its admission more probably than
not affected the jury’s verdict. Accordingly, we reverse the judgment of the trial court and
remand for a new trial on all issues presented to the jury at the first trial.10 Costs of this
appeal are taxed to Mark and Jeffrey Smallman and their sureties, for which execution may
issue if necessary.




                                                 _________________________________
                                                 SHARON G. LEE, JUSTICE




        10
            Because Ms. Caraway failed to raise the issue of standing with the trial court and we have held
it waived, it is not available and should not be reconsidered upon remand. See Melton v. Melton, No. M2003-
01420-COA-R10-CV, 2004 WL 63437, at *3 (Tenn. Ct. App. Jan. 13, 2004); Davis v. Estate of Flynn,
E2001-02480-COA-R3-CV, 2002 WL 31174229, at *8-9 (Tenn. Ct. App. Sept. 30, 2012).

                                                   -30-
