John Brantley v. Robery Mayo

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
FILED
JOHN BRANTLEY, KATHY B. )
SKINNER, ALISON BRANTLEY ) December 28, 1998
WILLIAM THOMAS MAYO and )
RICHARD MAYO, ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
Plaintiffs/Appellees, ) Madison General Sessions No. 9360
)
vs. )
) Appeal No. 02A01-9710-GS-00261
ROBERT MAYO and KATHRYN )
MAY GILTNER, )
)
Defendants/Appellants. )
APPEAL FROM THE GENERAL SESSIONS COURT OF MADISON COUNTY
AT JACKSON, TENNESSEE
THE HONORABLE WALTER BAKER HARRIS, JUDGE
For the Plaintiffs/Appellants: For the Defendants/Appellees:
Jesse H. Ford, III John Van den Bosch, Jr.
Jackson, Tennessee G. William Hymers, III
Jackson, Tennessee
REVERSED AND REMANDED
HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
ALAN E. HIGHERS, J.
OPINION
This is a probate case. The decedent set up joint accounts with right of survivorship with her
two surviving children. The surviving children were named co- executors of the decedent’s estate.
The trial court removed the decedent’s children as co-executors of the estate and found that these
accounts were assets of the decedent’s estate, not joint accounts. The decedent’s surviving children
appeal. We find that the evidence was insufficient to support a finding of undue influence, and
reverse the decision of the trial court.
M a r y T . M a y o F ie ld i n g ( T e s ta tr ix ) d i e d t e s ta te o n M a y 2 1 , 1 9 9 0 . H e r w ill le f t o n e - f o u r th o f
h e r e s t a t e t o e a c h o f h e r s u r v i v i n g c h i l d r e n , Robert Brown Mayo (“Mayo”) and Kathryn Mayo Giltner
(“Giltner”), a n d d i v i d e d t h e o t h e r h a l f a m o n g t h e c h i l d r e n o f h e r t w o d e c e a s e d c h i l d r e n . T h e w i l l w a s
a d m i t t e d to p r o b a te o n J u n e 9 , 1 9 9 0 , a n d is n o t c o n te s t e d in t h i s a c t i o n . I n h e r w i l l , T e s t a tr i x n a m e d
h e r tw o s u r v i v i n g c h i l d r e n , M a y o a n d G i l t n e r , d e f e n d a n t s / A p p e l la n t s , a s c o - e x e c u t o r s .
T h is d i s p u t e a r o s e o v e r t h e s t a t u s o f c e r t a i n a c c o u n t s w i th J . C . B r a d f o r d & C o m p a n y h e l d b y
T e s t a t r i x . T h e a c c o u n t s w e r e s e t u p a s j o i n t a c c o u n ts w i t h r i g h t s o f s u r v i v o r s h i p , w i t h T e s t a tr i x a n d
th e c o - e x e c u t o r s , th e d e f e n d a n t s M a y o a n d G iltn e r , a s jo in t te n a n ts . I f th e a c c o u n t s w e r e c o n s id e r e d
p a r t o f T e s ta t r i x ’ e s t a t e a n d d i s tr i b u t e d u n d e r h e r w i l l , T e s ta t r i x ’ g r a n d c h i l d r e n w o u l d h a v e r e c e iv e d
a p o r t i o n o f t h e f u n d s . T h e T e s t a tr ix ’ g r a n d c h i l d r e n f il e d t h i s a c t io n , c h a l le n g i n g t h e s t a tu s o f th e
a c c o u n ts a n d r e q u e s t i n g t h a t t h e d e f e n d a n t s b e r e m o v e d fr o m t h e ir p o s i t i o n s a s c o -e x e c u to r s .
At the trial, the plaintiff grandchildren contended that Testatrix had been the victim of undue
influence by defendants Mayo and Giltner. The proof at trial showed that Testatrix kept detailed
records of all her affairs and managed her own business matters until she became ill in 1989.
Testatrix underwent heart bypass surgery on July 19, 1989, and continued to suffer from poor
physical health until her death in 1990.
Dr. James J. Diffee, Testatrix’s doctor, testified as to her physical health prior to her death
in May 1990. Testatrix suffered from atherosclerotic heart disease, intermittent congestive heart
failure, functional bowel disease and anemia, along with other more minor problems. Dr. Diffee
stated that he did not notice mental deterioration during the time he treated the Testatrix, however,
his only contact with Testatrix was related to her health, and not to her business concerns. Dr. Diffee
repeatedly stated that he had no knowledge of Testatrix’s mental ability as related to her business
affairs.
Giltner, Testatrix’s daughter, testified that she usually accompanied Testatrix to her
appointments with Dr. Diffee and often contacted the doctor’s office on behalf of her mother.
Family members testified that Giltner and Mayo took care of such things as doctor appointments and
upkeep on Testatrix’ home and rental properties.
Defendant Mayo testified at trial that he moved home to Jackson, Tennessee from
Birmingham, Alabama in 1984. At that time, Testatrix placed Mayo’s name on her checking
account so that he could “write checks for her and do what she wanted [him] to do.” Testatrix held
several certificates of deposit at Fidelity Federal Bank, now Union Planters Bank, in her own name.
Mayo testified that, in 1989, Testatrix asked him to find an account that would bear higher interest
than did her certificates of deposit. Mayo informed his mother that he maintained an account at J.C.
Bradford Company that earned eight percent interest. Mayo then introduced Testatrix to Terry
Nance, vice-president at J.C. Bradford, who opened two stock market accounts for Testatrix.
Testatrix had never before done business with J.C. Bradford, and had never before dealt in the stock
market. Although several witnesses at trial testified as to Testatrix’ business acumen, more than one
witness remarked that they were surprised to see Testatrix become active in the stock market at that
point in her life, when she had no prior experience in that area.
Testimony at trial established how the J.C. Bradford accounts at issue were set up and
funded. One account was opened in October 1989 and the other was opened in November 1989.
One account was set up with Testatrix and Giltner as joint owners, and the other was set up with
Testatrix and Mayo as joint owners. The J.C. Bradford employees who opened the accounts testified
at trial, and could not say whether Testatrix knew what “joint ownership with rights of survivorship”
meant. The J.C. Bradford employees were unsure whether Testatrix actually requested joint
accounts with survivorship rights.
The trial court ruled that “the J.C. Bradford accounts are assets of the estate, and not joint
accounts.” The trial court did not put in its order the reason for the ruling. However, in its oral
ruling, the trial court stated:
. . . [W]ith respect to the accounts at J. C. Bradford Company, where the deceased
had never done any business before, was taken out by relatives and did, in fact, create
the documents with the right of survivorship. The Court does hold that those are, in
fact, estate assets.
2
Mayo and Giltner now appeal this decision. On appeal, they argue that the trial court erred in its
decision to include the J. C. Bradford accounts as assets of Testatrix’ estate.
We review the trial court’s judgment de novo, with a presumption of the correctness of the
trial court’s findings of fact. Rule 13(d) of the Tennessee Rules of Appellate Procedure.
The party seeking to invalidate a transaction because of undue influence has the burden of
proof. Williamson v. Upchurch, 768 S.W.2d 265, 269 (Tenn. App. 1988). Tennessee case law
reflects the well-settled presumption “that any transaction benefiting the dominant party in a
confidential relationship is invalid where there is proof that the dominant party exercised dominion
or influence over the weaker party.” Williamson, 768 S.W.2d at 269 (citing Gordon v. Thornton,
584 S.W.2d 655, 658 (Tenn. App. 1979); Roberts v. Chase, 25 Tenn. App. 636, 651, 166 S.W.2d
641, 650-51 (1942)). “[O]nce the presumption arises, the burden shifts to the dominant party to
demonstrate that the transaction is proper.” Id. (citing Parsley v. Harlan, 702 S.W.2d 166, 174
(Tenn. App. 1985); Howell v. Davis, 43 Tenn. App. 52, 59-60, 306 S.W.2d 9, 12 (1957)). However,
the party seeking to invalidate the transaction must first establish a confidential relationship.
Generally, a confidential relationship is one “which gives one party dominion or influence
over the other.” Williamson, 768 S.W.2d at 269. “[P]roof of a confidential relationship will not,
by itself, give rise to the presumption of invalidity. It must be accompanied by proof tending to
show that the free agency of the weaker party was destroyed and replaced by the will of the dominant
party.” Id. (citations omitted). “Evidence of one party's deteriorated mental or physical condition
will substantiate the existence of a confidential relationship as well as the ability of the dominant
party to influence the weaker party.” Id.; see Fritts v. Abbott, 938 S.W.2d 420, 420-21 (Tenn. App.
1996). The elements of undue influence are:
dominion and control by the stronger over the weaker, or there must be a showing of
senility or physical or mental deterioration of the donor or that fraud or duress was
involved, or other conditions which would tend to establish that the free agency of
the donor was destroyed and the will of the donee was substituted therefor.
Fritts v. Abbott, 938 S.W.2d 420, 420-21 (Tenn. App. 1996) (quoting Kelly v. Allen, 558 S.W.2d
845, 848 (Tenn. 1977)). Defendants may rebut the presumption of undue influence by proof of the
fairness of the transaction, established by a preponderance of the evidence. Reynolds v. Day, 792
S.W.2d 924 (Tenn. App. 1990). The fairness of the transaction may be demonstrated by showing
3
that the Testatrix had independent advice during the transaction. Crain v. Brown, 823 S.W.2d 187,
194 (Tenn. App. 1991) (citing Richmond v. Christian, 555 S.W.2d 105 (Tenn. 1977)).
The question of whether a confidential relationship existed is a question of fact. Fritts, 938
S.W.2d at 421; see Matlock v. Simpson, 902 S.W.2d 384 (Tenn. 1995). No particular set of
circumstances requires a finding of undue influence. Instead, “the undue influence issue should be
decided by the application of sound principles and good sense to the facts of each case.” Mitchell
v. Smith, 779 S.W.2d 384, 388 (Tenn. App. 1989) (quoting Halle v. Summerfield, 199 Tenn. 445,
454, 287 S.W.2d 57, 61 (1956)).
Defendants rely on a recent Tennessee Supreme Court case, In re Nichols, 856 S.W.2d 397(Tenn. 1993), which involves facts similar to this case. In Nichols, Testatrix willed “all [her]
property, real and personal[,]” to her son and her two grandchildren, in equal shares. Nichols, 856
S.W.2d at 398. Testatrix also purchased or renewed seven certificates of deposit prior to her death,
and established those accounts in joint tenancy with right of survivorship with her son. Testatrix
died, and the certificates of deposit transferred to son as sole owner. One grandchild filed suit to
establish the certificates of deposit as part of the estate. The record contains testimony from the
Testatrix’s lawyer, who stated that Testatrix had informed him that she “wanted her estate to be
divided equally between the three” beneficiaries of her will. Id. Testatrix also informed her lawyer
that she “had instructed [son] as to what he was to do with the certificates of deposit, that they were
all to be divided equally between him and the two grandchildren.” Id. Testatrix stated that she
trusted her son to do her will, even though it was not the law. Id.
The trial court found the certificates of deposit to be part of the estate, and was affirmed by
the Court of Appeals. The Tennessee Supreme Court reversed, finding that ownership of the
certificates of deposit purchased after January 1, 1989 was controlled by the provisions of Tennessee
Code Annotated § 45-2-703(e)(1) (Supp. 1992), which states in pertinent part:
A designation of “joint tenants with right of survivorship,” or substantially
similar language, shall be conclusive evidence in any action or proceeding of the
intentions of all named that title vests in the survivor.
Nichols, 856 S.W.2d at 399. In this case, the accounts at issue were established after January 1,
1989; consequently, Tennessee Code Annotated § 45-2-703(e)(1) applies.
4
In this case, there was evidence from which the trial court could conclude that Testatrix
placed trust and confidence in Mayo and Giltner, relying on them for such items as keeping up with
appointments and taking care of her home and rental properties. There was testimony regarding
Testatrix’ deteriorated physical condition after her heart surgery. Witnesses testified that Testatrix
had never before opened accounts such as those at J.C. Bradford and that they were surprised to see
her do so.
However, the testimony of Testatrix’ physician was that he noticed no mental deterioration
during the time in which he treated her, from the time of her heart surgery until her death. There is
no evidence that Testatrix’ mental condition deteriorated to permit Mayo and Giltner to have
“dominion or influence” over Testatrix. Williamson, 768 S.W.2d at 269. There is simply no
evidence from which the trial court could conclude that Testatrix’ “free agency . . . was destroyed
and replaced by the will of the dominant party [Mayo and Giltner].” Id. Consequently, the evidence
is insufficient for the trial court to find a confidential relationship that would create a presumption
that any transaction benefitting Mayo and Giltner would be invalid. See id. Accordingly, the
decision of the trial court, holding the creation of the joint accounts invalid and including the joint
J. C. Bradford accounts in Testatrix’ estate, must be reversed.
The decision of the trial court is reversed, and the cause is remanded for further proceedings
consistent with this Opinion. Costs on appeal are assessed against Appellees, for which execution
may issue if necessary.
H O L L Y K IR B Y L IL L A R D , J .
C O N C U R :
W . F R A N K C R A W F O R D , P . J ., W .S .
A L A N E . H I G H E R S , J .
5