GALA JOHNSON-MURRAY ET AL.
RODNEY BURNS ET AL.
Session November 2, 2016
from the Chancery Court for Williamson County No. P-6421
Joseph A. Woodruff, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Jonathan L. Miley, Nashville, Tennessee, for the appellants,
Gala Johnson-Murray and Bertha Mary Murray.
Timothy Street, Franklin, Tennessee, for the appellees,
Rodney Burns and Aretha Kaye Burns.
G. Clement, Jr., P.J., M.S., delivered the opinion of the
Court, in which Andy D. Bennett and W. Neal McBrayer, JJ.,
G. CLEMENT, JR., P.J., M.S.
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
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 with the exception of property at 8237
Horton Highway, College Grove, Tennessee ("the Horton
Property"), which was devised to Rodney Burns.
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.
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.
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
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.
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
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
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.
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. 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
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.
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."
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.
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.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.
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. 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.
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.
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?
the trial court entered the judgment, Plaintiffs filed a
timely motion for a directed verdict or in the alternative a