Session September 20, 2016
from the Chancery Court for Marion County No. 7677, PR135
Jeffrey F. Stewart, Chancellor
an appeal from a jury trial in a will contest. The jury
returned a verdict finding that the contested will was valid.
The contestants have appealed, raising numerous issues and
arguing that the evidence presented does not support the
jury's verdict. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed and Remanded
Sharp, Jr. and Natalie R. Sharp, Nashville, Tennessee, for
the appellants, Carlynn D. Newcom, Reed B. Durham, and Don E.
J. T. Blevins, II, Jasper, Tennessee, and Jared C. Smith,
South Pittsburg, Tennessee, for the appellee, James Clifford
B. Goldin, J., delivered the opinion of the Court, in which
Richard H. Dinkins and Kenny Armstrong, JJ., joined.
B. GOLDIN, JUDGE
Background and Procedural History
an action to contest the validity of a document purporting to
be the last will and testament of Gertrude Bible Link. For
clarity, we will briefly summarize Ms. Link's relevant
family relationships before discussing the circumstances
surrounding the document's execution and the procedural
history of this case.
Link was born on January 6, 1915. She graduated from Middle
Tennessee State University and worked for many years as a
schoolteacher in Marion County, Tennessee. She married Harlen
Link in 1939, and they remained married until Mr. Link died
in 1992. Although Ms. Link did not have any children, she
maintained close relationships with her family. Ms. Link had
a particularly close relationship with her younger sister,
Cathryn Durham. Ms. Link and Ms. Durham attended college
together and shared a life-long interest in gardening. They
formed a local gardening club together and traveled to
various flower and garden shows. Ms. Durham's
children-Carlynn Newcom, Don Durham, and Reed Durham-also had
close relationships with Ms. Link growing up. Clifford Layne
is the son of Ms. Link's older sister, Bonnie
Layne. Mr. Layne has been a general sessions and
municipal court judge in Marion County since 1974. As she
grew older, Ms. Link relied on Mr. Layne for advice in
ordering her legal and financial affairs.
1989, Ms. Link approached Mr. Layne for legal advice, and he
referred her to Zach Kelly, a local attorney with whom he had
a personal and professional relationship. Mr. Kelly drafted a
will for Ms. Link, and she executed it in May 1989. Ms.
Link's 1989 will named Mr. Layne as executor of her
estate and, in pertinent part, provided that if she survived
her husband, her property would be distributed in equal
shares to Cathryn Durham, Carlynn Newcom, Reed Durham, Donald
Durham, and Clifford Layne.
1996, Ms. Link asked Mr. Layne if he would be willing to
serve as her attorney-in-fact. Once again, he referred her to
Mr. Kelly. Mr. Kelly drafted a general power of attorney
authorizing Mr. Layne to act on Ms. Link's behalf in all
matters, and Ms. Link executed it in March 1996. At trial,
Mr. Layne testified that he drove Ms. Link to Mr. Kelly's
office to execute the power of attorney and waited in the
lobby while she met with Mr. Kelly. Although the document was
effective upon execution, there is no evidence that Mr. Layne
acted as Ms. Link's attorney-in-fact prior to 2001.
1998, Ms. Link executed the document at issue in this case.
According to Mr. Layne, Ms. Link told him that she intended
to make a new will that would leave all of her property to
him with the exception of a $10, 000 devise to her church.
Mr. Layne drove Ms. Link to Mr. Kelly's office where she
met with Mr. Kelly alone while Mr. Layne waited in the lobby.
A handwritten note purportedly written by Mr. Kelly was
admitted as evidence at trial. In pertinent part, the note
3/5/98 Conf w/ Mrs. Gertrude Link
I met w/ her alone in my office.\
She was well aware of what she wanted to do.
If estate exceeds $300, 000 leave $10, 000 to
Leave everything else outright to Clifford Layne. He
is to handle as he sees fit!!
I mentioned Betty but she said not at this time.
March 11, 1998, Ms. Link executed a document drafted by Mr.
Kelly that provided, in pertinent part, as follows:
WILL AND TESTAMENT OF GERTRUDE B. LINK
I, Gertrude B. Link, of Marion County, Tennessee, being of
sound and disposing mind and memory, do hereby make, publish
and declare this to be my Last Will and Testament, hereby
revoking all prior testamentary instruments.
I direct my Executor: to pay all of my just debts, funeral
expenses, costs of administration and taxes out of my general
estate, as soon as practicable after my death.
If the value of my personal estate, excluding the value of my
real estate, personal effects, automobiles, clothing,
jewelry, and household furnishings and furniture, is equal to
or exceeds the sum of Three Hundred Thousand ($300, 000.00)
Dollars, then I do hereby make the following devise:
A. To the First Baptist Church of Jasper, Tennessee, the sum
of Ten Thousand ($10, 000.00) Dollars, to be utilized only
for building and/or renovation purposes.
I do hereby give, devise and bequeath all of the rest,
residue and remainder of my estate, including both realty,
and personalty, and wherever located, in fee simple and
absolutely, to my nephew, James Clifford Layne.
I appoint my nephew, James Clifford Layne, as Executor of
this my Last Will and Testament.
pages of the two-page document bear the handwritten initials
"GL, " and the second page bears Ms. Link's
signature as "Testatrix." Mr. Kelly and his
assistant, Danielle Steele, signed the document as witnesses
to its execution and also signed an attached affidavit
affirming that Ms. Link signed the will in their presence and
that they attested the will in her presence and in the
presence of each other. The affidavit bears the handwritten
initials "GL" and reflects that it was notarized by
Marty Murphy, another of Mr. Kelly's assistants. The
document does not contain any reference to Cathryn Durham,
Carlynn Newcom, Don Durham, or Reed Durham.
2005, Cathryn Durham died. In 2007, with Ms. Link suffering
from dementia, Mr. Layne authorized her admission to a
nursing home and began using his power of attorney to
exercise full control over her finances. From 2007 to 2012,
Mr. Layne exercised his power of attorney to pay for the
upkeep of Ms. Link's house, her nursing home expenses,
and various other expenses from Ms. Link's funds. In
2012, with Ms. Link's health deteriorating further, Mr.
Layne contacted Carlynn Newcom to discuss selling Ms.
Link's house. Ms. Newcom agreed that they should sell the
home if Ms. Link was not going to live in it again. Around
that time, Mr. Layne cleaned out Ms. Link's house and
threw away numerous documents and other items. At Ms.
Link's direction, Mr. Layne contacted Carlynn Newcom, Don
Durham, and Reed Durham prior to selling the house and
allowed them to come take any items they wanted from it. Ms.
Link died in December 2012.
January 2013, Mr. Layne filed a petition to probate Ms.
Link's 1998 will. In May 2013, Carlynn Newcom, Don
Durham, and Reed Durham (collectively, the
"Contestants"), filed an amended complaint
contesting the validity of the 1998 will. In the complaint,
they alleged that the will was a forgery. Alternatively, they
alleged that Ms. Link did not possess requisite testamentary
capacity or testamentary intent when she signed the will and
that the will was procured through undue influence or
fraud. They asserted that the 1998 will should be
set aside and Ms. Link's estate should be distributed
according to the terms of the 1989 will. Mr. Layne filed an
answer denying the material allegations of the amended
complaint, and the trial court entered a scheduling order
that established various discovery deadlines.
a period of discovery, the Contestants filed a motion for
partial summary judgment asserting that undisputed material
facts established (1) that Mr. Layne had a confidential
relationship with Ms. Link prior to her execution of the 1998
will, (2) that Mr. Layne's close relationship with Mr.
Kelly rendered Mr. Kelly incapable of providing Ms. Link with
independent advice, and (3) that Mr. Layne prejudiced the
Contestants by destroying documents relevant to their case.
Mr. Layne opposed the motion, and the trial court denied it
based on its conclusion that material facts were in dispute.
case was set for a jury trial scheduled to begin on July 21,
2015. The day before trial, Mr. Layne's attorney spoke
with Mr. Kelly's wife, Elizabeth Kelly. Ms. Kelly
informed Mr. Layne's attorney that Mr. Kelly would not be
able to testify at trial due to his deteriorating health. She
also informed him that she had photocopies of the handwritten
notes Mr. Kelly wrote during his meeting with Ms. Link. Mr.
Layne's attorney immediately notified the
Contestants' attorneys of his intent to present Ms. Kelly
as a witness regarding Mr. Kelly's unavailability and to
present the handwritten notes as evidence that Ms. Link
received independent advice regarding the will. The
Contestants objected to the late-disclosed evidence at the
outset of trial the following day. After listening to
arguments from both sides, the trial judge noted that both
parties could have attempted to depose Mr. Kelly or subpoena
his records related to Ms. Link's 1998 will and chose not
to do so. The judge ruled that Ms. Kelly would be permitted
to testify regarding Mr. Kelly's health but indicated
that he would reserve ruling on the admissibility of the
handwritten notes. Thereafter, the parties presented their
proof to the jury.
Mr. Layne presented evidence intending to demonstrate that
the 1998 will was executed in compliance with the formalities
of law. To that end, Ms. Kelly testified that Mr. Kelly was
not able to testify because he suffered a stroke in 2011 that
left him partially paralyzed and severely affected his
ability to communicate. She explained that, as a result of
his condition, she spent an inordinate amount of time each
day trying to communicate with him to accomplish simple
tasks. Ms. Kelly also identified Mr. Kelly's signature on
the 1998 will. In light of Ms. Kelly's testimony, the
trial court later indicated its satisfaction that Mr. Kelly
was not an available witness. The will's other
subscribing witness and the notary public who acknowledged
the witnesses signatures also testified. Ms. Murphy and Ms.
Steele both testified that Mr. Kelly was very professional
and followed the same strict protocol every time he drafted a
will for a client. They explained that, before drafting the
will, Mr. Kelly always met with the client alone in his
office to discuss the client's intentions. When the
client returned to execute the will, Mr. Kelly allowed only
the client, the necessary witnesses, and the notary to be in
the room. Any person that accompanied the client to the
office was required to wait outside. Although neither Ms.
Murphy nor Ms. Steele specifically remembered the execution
of Ms. Link's will in 1998, they identified their own
signatures and Mr. Kelly's signature on the document. As
such, the trial court admitted Ms. Link's 1998 will into
the Contestants presented evidence aimed at demonstrating
that the document purporting to be Ms. Link's 1998 will
was invalid. Carlynn Newcom testified at length regarding the
close relationship Ms. Link shared with her mother and
maintained that it never changed. She produced a copy of Ms.
Link's 1989 will, which, she testified, Ms. Link gave to
her shortly after executing it. Ms. Newcom testified that she
visited Ms. Link in the nursing home every week, and Ms. Link
never mentioned changing her 1989 will or having another
will. She explained that she and her brothers first learned
about the 1998 will after Ms. Link died when Mr. Layne told
them that she left everything to him. Although she
acknowledged that Ms. Link did not discuss her finances
openly, Ms. Newcom maintained that Ms. Link would not have
disinherited her family without saying something.
Nevertheless, she admitted that she had no evidence that Ms.
Link's 1998 will was invalid. Ms. Newcom acknowledged
that Ms. Link had her wits about her "[m]ost of the
time" in 1998 and that, to her knowledge, Ms. Link was
not afraid of Mr. Layne or under any emotional distress. Don
Durham and Reed Durham also testified, and their testimony
differed little in substance from Ms. Newcom's testimony.
Both testified that Ms. Link did not discuss her finances
with them but maintained that she would not have disinherited
their mother. Don Durham testified that Ms. Link appeared to
have her wits about her in 2001. Similarly, Reed Durham
testified that she appeared to have her wits about her in
1998. Reed Durham also testified that Ms. Link thought
"very highly" of and trusted Mr. Layne. Ryan
Phillips testified that he lived near Ms. Link and began
doing odd jobs for her about once a week starting in 1997.
Mr. Phillips testified that he never heard Ms. Link mention
Mr. Layne in the eight or nine years he worked for her,
although she spoke often about Ms. Durham, who he knew from
church. He testified that Ms. Link appeared to be in her
right mind, although she seemed "elderly." He
explained that Ms. Link was trusting and that someone
probably could have taken advantage of her. Fred Newcom,
Carlynn Newcom's husband, testified that Mr. Layne told
him in 2005 that he did not know anything about Ms.
Link's finances. He testified that, in a later
conversation, Mr. Layne told him that he had stopped visiting
Ms. Link in the nursing home.
Contestants also presented testimony of Mr. Layne. Mr. Layne
agreed that Ms. Link was very close with Ms. Durham, but
testified that he grew close with Ms. Link in her later
years. He admitted, however, that his only evidence of their
relationship was her 1996 power of attorney and her 1998
will. Mr. Layne was questioned at length regarding his
failure to produce various documents that were presumably in
Ms. Link's possession during her lifetime. Mr. Layne
acknowledged that he did not know what happened to Ms.
Link's driver's license, marriage license, or credit
card receipts. He testified that Ms. Link had drawers full of
check stubs, bank statements, and tax returns dating back to
the 1940s and explained that he threw away numerous documents
and other items when he was preparing Ms. Link's house to
be sold. Nevertheless, he maintained that he did not throw
away anything he considered to be important and did not
destroy any documents in anticipation of the litigation. Mr.
Layne testified that Ms. Link told him what would be in her
1998 will before she met with Mr. Kelly about it. He
testified that he drove her to Mr. Kelly's office and
waited in the lobby while she met with him. He acknowledged
that he could not produce any documentation showing who paid
Mr. Kelly to draft Ms. Link's 1998 will but explained
that Ms. Link likely had because she handled her own
transactions at the time. Mr. Layne acknowledged that he had
been friends with Mr. Kelly for more than 40 years. He
testified that the two had been on fishing trips together in
the past but maintained that they did not take any trips
together in the 10 years prior to 1998. He also testified
that Mr. Kelly had served as his personal attorney in various
matters through the years. Mr. Layne testified that he
visited Ms. Link every week when she was in the nursing home
and felt obligated to take greater care of her knowing the
contents of her 1998 will. When asked why he never told
anyone about Ms. Link's 1998 will, Mr. Layne answered
that it was not his information to tell.
the Contestants concluded the presentation of their
case-in-chief, Mr. Layne presented additional witness
testimony. Ronald Case testified that he was the director of
Ms. Link's nursing home and served as her chaplain while
she was there. Mr. Case testified that he saw Mr. Layne at
the nursing home every week but that he did not recognize the
Contestants. Joyce Ann Parker testified that she was Ms.
Link's niece and a first cousin of Mr. Layne and the
Contestants. Ms. Parker testified that she had frequently
visited Ms. Link's nursing home to see her mother-in-law
and saw Mr. Layne and his wife there many times. She
testified that she saw Carlynn Newcom there once but stated
that she never saw Don or Reed Durham. Gene Rountree
testified that he was employed by Ms. Link's nursing home
and that he saw Mr. Layne visiting her there
"periodically." Mr. Rountree testified that he did
not recognize any of the Contestants.
end of the second day of trial, the trial court excused the
jury and held an evidentiary hearing on the admissibility of
the photocopied handwritten notes purportedly written by Mr.
Kelly during his meeting with Ms. Link. During the hearing,
Ms. Murphy identified Mr. Kelly's handwriting in the
notes and testified that they were typical of the notes Mr.
Kelly would write when meeting with a client. She explained
that, at some point, Mr. Kelly's files were scanned onto
a computer and the original copies were destroyed. Ms. Kelly
also identified Mr. Kelly's handwriting in the notes. She
explained that, when Mr. Kelly closed his law office, she
scanned all of his files onto a computer and shredded the
originals. After hearing their testimony and considering the
arguments of the parties, the trial court ruled that the
handwritten notes were to be admitted as evidence. When the
jury returned the following morning, Ms. Kelly authenticated
the handwritten notes and they were admitted into evidence.
the conclusion of proof and closing arguments, the trial
court read its instructions to the jury. The judge instructed
the jury on the burdens applicable to each of the grounds
listed in the Contestants' amended complaint for
contesting Ms. Link's 1998 will: forgery, lack of
testamentary capacity, lack of testamentary intent, undue
influence, and fraud. The jury was given a verdict form
requiring it to answer certain questions related to each of
the grounds instructed by the judge and was excused to
deliberate at 1:00 pm. At 4:39 pm, the judge informed the
parties' attorneys that he had received word from the
bailiff that the jury did not expect to reach a verdict that
night and that several of the jurors would be unable to
return the following day. The judge explained that he could
declare a mistrial but suggested that he could give the jury
"a little dynamite charge" to emphasize the
importance of their efforts. The attorneys did not object to
the court giving the jury a supplemental instruction, and the
jury was brought back into the courtroom. In its supplemental
instruction, the judge noted the time and money each side had
invested in trying the case and encouraged the jurors to be
willing to reexamine their own views. Sometime thereafter,
the parties' attorneys notified the judge that they would
accept a majority verdict, but the judge encouraged them to
give the jury more time to reach a unanimous
verdict. At 6:32 pm, the jury announced its
unanimous verdict upholding Ms. Link's 1998 will.
Specifically, the jury found that (1) Ms. Link had the
testamentary capacity to execute the contested will, (2) Ms.
Link had the testamentary intent to execute the contested
will, (3) the contested will was not forged, (4) the
contested will was not the product of undue influence, (5)
the contested will was not the product of fraud, and (6) the
document executed on March 11, 1998 was Ms. Link's valid,
executed last will and testament.
August 21, 2015, the Contestants filed a post-judgment motion
for a judgment notwithstanding the verdict or new trial. In
the motion, they argued that the trial court should enter a
judgment notwithstanding the verdict because no material
evidence was presented at trial to support the jury's
verdict. Alternatively, they argued that they were entitled
to a new trial because the jury's verdict was contrary to
the weight of the evidence, contrary to law, and the result
of errors committed by the trial court. They proceeded to
list 43 alleged errors made by the trial court that they
argued impaired their right to a fair trial and resulted in
an erroneous verdict.
trial court held a hearing on the Contestants'
post-judgment motion on October 6, 2015. Although the judge
declined to address each of the 43 errors listed in their
motion, he was particularly concerned with one of
them-"38. The trial judge engaged in ex parte
communications with the jury." He stated that he had, in
fact, communicated with the jury off the record and outside
the presence of the attorneys. He explained that, in response
to a report of possible juror intimidation, he reiterated his
earlier jury instructions by encouraging the juror to
consider the opinions of others. He further explained that,
immediately after the incident, he disclosed it to the
attorneys for both parties and neither party objected. He
stated that, although he regretted not putting the exchange
on the record, he did not think it warranted a new trial. The
trial court entered an order denying the Contestants'
post-judgment motion on November 9, 2015. The Contestants
timely filed an appeal to this Court on November 30, 2015.
The Contestants raise issues for our review, which we restate
1. Whether the trial court committed reversible error in
denying the Contestants' motions for partial summary
judgment and judgment notwithstanding the verdict.
2. Whether the trial court abused its discretion in
controlling the course of trial and witness examination.
3. Whether the trial court abused its discretion in its
4. Whether the trial court committed reversible error in
delivering inaccurate and incomplete jury instructions and in
using the ...