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Johnson-Murray v. Burns

Court of Appeals of Tennessee, Nashville

March 14, 2017


          Session November 2, 2016

         Appeal from the Chancery Court for Williamson County No. P-6421 Joseph A. Woodruff, Judge

         Nieces of the decedent contest the validity of a quitclaim deed and the decedent's will on the ground they were the result of undue influence exerted upon the decedent by her stepson and his wife. The quitclaim deed conveyed the decedent's real property to herself, her stepson, and his wife as joint tenants with right of survivorship. The will bequeathed the decedent's entire estate to her stepson. Following a jury trial, the jury found that the deed and will were both valid. The nieces appeal, contending there is no material evidence to support the jury's verdict. They also contend the trial court erred by instructing the jury that the stepson, who was the decedent's attorney-in-fact, had the authority to sign the will and deed on behalf of the decedent. We have determined that the record contains material evidence to support the jury's verdict. As for the jury instructions, the trial court erred by instructing the jury that the stepson had the authority to sign the will on behalf of the decedent as her attorney-in-fact because it would not comply with mandatory requirements of the Tennessee Execution of Wills Act. With regard to whether the stepson could sign the deed on behalf of the decedent, the answer and jury instruction were incomplete to such an extent as to constitute an erroneous instruction. Nevertheless, having considered the jury instruction in its entirety, we are unable to conclude that these errors more probably than not affected the outcome of the verdict. Therefore, we affirm.

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

          Jonathan L. Miley, Nashville, Tennessee, for the appellants, Gala Johnson-Murray and Bertha Mary Murray.

          J. Timothy Street, Franklin, Tennessee, for the appellees, Rodney Burns and Aretha Kaye Burns.

          Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.


          FRANK G. CLEMENT, JR., P.J., M.S.

         Elizabeth Jones Patton ("the decedent") died on January 17, 2012, at the age of 95. She was survived by two nieces, Bertha Murray and Gala Johnson-Murray ("Plaintiffs"), and her stepson and his wife, Rodney Burns and Aretha Burns, respectively ("Defendants").[1]

         One month after the decedent's death, Rodney Burns filed a Small Estate Affidavit with the Chancery (Probate) Court of Williamson County, stating the estate had assets of less than $25, 000. On February 21, 2012, Gala Johnson-Murray filed a petition to admit to probate a document dated December 10, 1985, purporting to be the last will and testament of the decedent ("the 1985 will"). In the 1985 will, the decedent bequeathed and devised the entirety of her estate to Plaintiffs[2] with the exception of property at 8237 Horton Highway, College Grove, Tennessee ("the Horton Property"), which was devised to Rodney Burns.

         Rodney Burns filed a response to the petition claiming that he was in possession of the decedent's more recent will and submitted for probate a document dated November 9, 2010, likewise purporting to be the decedent's last will and testament ("the 2010 will"). In the 2010 will, the decedent revoked all prior wills, disinherited Plaintiffs, and named Rodney Burns as the sole beneficiary. Mr. Burns also submitted a quitclaim deed dated November 9, 2010 ("the 2010 deed"), conveying the Horton Property from the decedent to herself and Defendants as joint tenants with right of survivorship, as well as a document dated November 29, 2011, purporting to be the first codicil to the 2010 will ("the 2011 codicil"). The 2011 codicil designated Aretha Burns as the sole beneficiary in the event her husband predeceased the decedent.

         On September 25, 2012, Plaintiffs filed a petition to contest the validity of the 2010 will and the 2011 codicil. Plaintiffs subsequently filed an amended complaint to declare the 2010 deed null and void and to quiet title to the real property in the estate. Plaintiffs alleged that the decedent was not of sound mind and body when the deed, will, and codicil were executed and that all three instruments were the result of Defendants' undue influence.

         By order entered on November 13, 2012, the trial court identified the issues to be determined. The issues relevant to this appeal are: (1) the competency of the decedent in executing the 2010 deed, the 2010 will, and the 2011 codicil; (2) whether the deed, will, or codicil were procured by Defendants exerting undue influence on the decedent; and (3) if the 2010 will is not valid, whether the 1985 will is valid.

         The case was tried before a jury, and the testimony revealed the following: Rodney Burns lived with the decedent at the Horton Property from the time he was five-years old until he married Aretha Burns in 1985, at which time he and his wife moved into the home next door to the decedent, where they remain. The decedent suffered a stroke in 2005, at which time Defendants began assisting the decedent by, inter alia, cleaning the house and taking her to doctor's appointments. Mr. Burns also explained that he worked during the day and that he installed a gate at the decedent's home to keep strangers from coming upon the decedent's property while she was at home alone.

         Several of the decedent's family members and friends testified that the decedent was very close with her extended family. Howard Rucker, a pastor and distant cousin of the decedent, testified that he had a good relationship with the decedent. Mr. Rucker stated that he frequently visited the decedent in her home, from 2010 up until her death. He also stated that he visited the decedent after the gate was installed and that he never saw the gate chained and locked. He further testified that once the gate was installed, he could go around the side of the gate. Mr. Rucker testified that the decedent always recognized him when he visited. He described the decedent as a highly respected lady and that you could not talk her into something she didn't want to do. When asked if the decedent had lost her mental abilities, Mr. Rucker responded that the decedent was "always sharp-minded."

         Hattie May Smith, who is Mr. Rucker's sister, testified that she was good friends with the decedent and would often visit the decedent's home. She testified that on one occasion when she visited the decedent in September of 2010, she was unable to enter the house through the front door because linoleum or carpet had detached from the floor, which prevented it from opening. Ms. Smith also stated that she noticed a smell of urine coming from the house. Subsequently, Ms. Smith made a referral to the Adult Protective Services division of the Tennessee Department of Human Services ("the Department"). Ms. Smith testified that, approximately one month later, she contacted the Department a second time because she observed cars blocking the decedent's driveway.

         Lori Bartlett, who is employed by the Department, investigated the referrals of self-neglect in reference to the decedent. Ms. Bartlett stated that the decedent would spend some nights at her residence and some nights at Defendants' residence next door. She testified that the decedent needed some assistance in the home, e.g., help with meals because she had difficulty seeing and assistance with medications and other activities such as getting bath water ready. Regarding the first referral, Ms. Bartlett confirmed that it was difficult to get into the house through the front door and that there was an odor of urine in the house. She addressed those issues with Defendants, and the case was subsequently closed as invalid because Ms. Bartlett determined that Defendants were assisting the decedent adequately. As to the second referral, Ms. Bartlett determined it to be invalid because the decedent was receiving the help that she needed. Specifically, Ms. Bartlett testified that there were no concerns that the decedent was being neglected. Ms. Bartlett testified that following her investigations into the two referrals of self-neglect, she was satisfied that the decedent was capable of taking care of herself with some assistance. She further testified that the decedent indicated that she did not want to be bothered by Hattie May Smith anymore and that Defendants contacted the Williamson County Sheriffs Department. Ms. Bartlett testified that she spoke to the officer and confirmed that the decedent did not want Ms. Smith in her home.

         Aretha Burns testified that, following Ms. Bartlett 's first visit, the decedent executed three powers of attorney to Rodney Burns, with Aretha Burns to be the successor power of attorney.[3] Ms. Burns testified that the powers of attorney were a product of the suggestion of Ms. Bartlett. The powers of attorney were executed on September 20, 2010. Upon execution, Ms. Burns transmitted the documents to the Department via facsimile. However, both Aretha and Rodney Burns testified that the powers of attorney were never exercised.

         Rodney Burns testified that he never attempted to restrict family members or friends from seeing the decedent, other than Hattie May Smith. Regarding the decedent's finances, Mr. Burns testified that the decedent would endorse her social security checks, and then he would cash them and give the money directly to her. Mr. Burns explained that the decedent would then give him the money to pay her bills and that there was little, if any, money left over after her bills were paid. He stated that they followed this protocol for over twenty-two years and it was not changed after obtaining the powers of attorney.

         The jury also heard deposition testimony from the decedent's doctor, Gwendolyn Howard, M.D, which revealed the following: Dr. Howard began treating the decedent following the decedent's May 2005 stroke. Dr. Howard noted that the decedent did not have any deficits subsequent to the stroke and was not suffering from any residual effects of the stroke. Dr. Howard testified that Rodney Burns brought the decedent to all of her appointments and that the decedent "seemed like she was extremely well cared for." As to the decedent's mental capacity, Dr. Howard testified that, up until shortly before her death, the decedent was "aware of her surroundings and what was going." Dr. Howard saw the decedent in October and November of 2010 at which times her cognition and understanding were "very good given her age."

          As to the procurement of the 2010 deed, Rodney Burns testified that the decedent told him that she "had gotten to the age where she [couldn't] take care of the property like she used to, and she wanted [him] to have [the Horton Property] so [he] could continue taking care of it." Mr. Burns testified that the decedent chose attorney Fred Dance to draft the deed because Mr. Dances' father had rendered legal services to the decedent and her late husband in the past. The 2010 deed was prepared by Mr. Dance a week or two before the execution date of the 2010 will. The deed conveyed the Horton Property from the decedent, who was the sole owner of the property, to herself and Defendants as joint tenants with right of survivorship.

         As for the 2010 will, Jesse Eugene Bennett, a friend and former employer of the decedent, testified that the decedent expressed to him that she wanted to make a will.[4]Mr. Bennett agreed to assist the decedent and told her that she would need to put her wishes in writing. Following her conversation with Mr. Bennett, the decedent sent a written note to Mr. Bennett that set forth her wishes. Mr. Bennett then engaged LegalZoom to draft a will consistent with the decedent's instructions. Mr. Bennett also testified that he paid for the will to be prepared by LegalZoom but that he did not write the will; he merely forwarded the decedent's written instructions. When Mr. Bennett received a package from LegalZoom, he opened it to make sure it was the decedent's will, determined it was, and sent the draft will to the decedent. According to Mr. Bennett, the decedent, although "frail, " was still "sharp" and "had all of her facilities [sic]" at that time.

         Rodney Burns took the decedent to the bank on November 9, 2010, where the decedent executed both the 2010 deed and the 2010 will in the presence of two witnesses and a notary.[5] Nathaniel Burgess, the manager of the bank, notarized the signatures to both documents. Mr. Burgess testified that he was satisfied the decedent was of sound mind and not under any undue influence. When questioned whether he could recall if the decedent was blind or had bad vision, Mr. Burgess responded that "she seemed perfectly capable." He further testified that the decedent looked at the document and was able to sign her name without any guidance or assistance. Mr. Burgess's testimony was corroborated by Walter Mack Turner, a witness to the 2010 will, who testified that the decedent didn't appear to have any disabilities and that she used her own hand to sign the 2010 will.

          Elizabeth Russell testified that she was a witness to the 2011 codicil, which the decedent executed on November 29, 2011, in the law offices of Timothy Street. Ms. Russell, an attorney, testified that the decedent was advanced in age and in a wheelchair but that she did not know if the decedent was blind. Ms. Russell also stated that the codicil was read aloud to the decedent, slowly and audibly, by an employee at the law office. She said the decedent was aware of what was going on and expressed that the codicil embodied her intent. Ms. Russell stated that a legal-sized clipboard was given to the decedent so that she could hold the codicil in her lap and stay in the wheelchair while she signed it. Ms. Russell explained that there was no armrest on the wheelchair, so Rodney Burns helped steady the decedent's arm. Ms. Russell explained that the decedent held the pen as she executed the document and that Rodney Burns was simply providing support for her arm.

         At the conclusion of the trial, the jury entered into deliberations. While in deliberations, the jury submitted the following question: "If [Rodney Burns] had power of attorney, could he sign Will and Deed for [the decedent]?" The trial judge responded "Yes" and provided the jury with a citation of Tenn. Code Ann. § 66-5-104, the general statutory duty of an attorney-in fact, which reads:

Instruments in relation to real or personal property, executed by an agent or attorney, may be signed by such agent or attorney for the principal, or by writing the name of the principal by that person as agent or attorney; or by simply writing the agent's or attorney's own name or the principal's name, if the instrument on its face shows the character in which it is intended to be executed.

Tenn. Code Ann. § 66-5-104.

         Following deliberations, the jury returned a verdict in favor of Defendants. On the jury verdict form, the jury was asked to answer two questions; the questions and the jury's answers are as follows:

1) Is the document dated November 9, 2010 entitled "Last Will and Testament" the valid Last Will and Testament of the decedent, Elizabeth Jones Patton? ANSWER: Yes.
2) Is the Deed dated November 9, 2010 conveying property as 8235 Horton Highway, College Grove, TN 37046 from Elizabeth Jones Patton, Rodney Burns and Aretha Burns a valid Deed? ANSWER: Yes.

         After the trial court entered the judgment, Plaintiffs filed a timely motion for a directed verdict or in the alternative a ...

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