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In re Estate of Farmer

Court of Appeals of Tennessee, Nashville

May 5, 2017

IN RE: ESTATE OF LAURA COPELAND FARMER

          Session March 21, 2017

         Direct Appeal from the Probate Court for Wilson County No. 2015PR1 John Thomas Gwin, Judge

         This appeal arises from a will contest. The decedent-mother had four children but left the majority of her estate to one daughter. The three plaintiff-siblings allege that the defendant-daughter exercised undue influence over their mother to induce her to change her will before she died. In the midst of a bench trial, the trial court entered an involuntary dismissal sua sponte at the close of plaintiffs' proof. The trial court found that a confidential relationship existed between the decedent-mother and the defendant-daughter, but the court also found by clear and convincing evidence that the mother was not influenced in the execution of her will. For the following reasons, we vacate the dismissal and remand for further proceedings.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Vacated and Remanded

          Charles Stephen Michels, II, and David J. Callahan, III, Nashville, Tennessee, for the appellants, Gary Wayne Farmer, Rita Gail Reed, and Roger Farmer.

          Larry Leonard Roberts and John S. Roberts, Nashville, Tennesssee, for the appellee, Sharon Farmer Lovett.

          Brandon O. Gibson, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         Laura Copeland Farmer ("Mother") resided in Mount Juliet, Tennessee, with her husband Marvin Farmer ("Father"). Mother and Father had four children - Gary, Rita, Roger, and Sharon.[1] In 2010, when Mother was 83 years old, Father died, and Mother underwent triple bypass surgery. Thereafter, Mother began residing with her daughter Sharon, who lived nearby, for weeks at a time. Sharon's relationship with her siblings deteriorated. In November 2013, at the age of 86, Mother revoked her prior will, which had named all four children as beneficiaries, and executed a new will leaving the majority of her estate to Sharon. Mother died in 2014 at the age of 87.

         Shortly after Mother's death, Sharon filed a petition for probate of Mother's estate and offered the November 2013 will for probate. When Gary, Rita, and Roger discovered the existence of the 2013 will leaving the majority of Mother's estate to Sharon, they filed a complaint to contest the will. Gary, Rita, and Roger (collectively, "Plaintiffs") alleged that they had been denied access to their mother by Sharon through her direct refusal to allow them to visit and her "elaborate lies and schemes to drive the family apart." Plaintiffs alleged that Sharon "concoct[ed] stories and rumors of wrongdoing done by the other children to cause [Mother] to suspect them and drive them out of her life, and eventually, [her] Will." They alleged that Mother "was so caught up in [Sharon's] falsehoods" that she would not even allow them to enter her house toward the end of her life. Plaintiffs alleged that Sharon held power of attorney over Mother, controlled physical access to her, and used Mother's funds for her own personal use. They alleged that Sharon was the dominant party in the relationship and used "fear, falsehoods, and control" to unduly influence Mother and procure the execution of the 2013 will.[2]

         The trial court entered an order opening the estate for probate and an order certifying the will contest. The will contest was heard over the course of three days in March 2016. Sharon, the defendant-daughter, testified that Mother lived with her part-time for the last few years of Mother's life. Mother lost her husband in June 2010, and she underwent triple bypass surgery in November 2010. Sharon and her husband lived seven to eight minutes away from Mother's home. Sharon testified that Mother lived with her for weeks at a time and overall spent approximately half of her time at each residence. Sharon's husband cooked for Mother almost every night she stayed at their home. On the days when Mother stayed at her own home, Sharon's husband would stop by her house on the way home from work to check on her. Sharon's husband and daughter both testified that Mother was strong-willed.

         Sharon testified that she picked up Mother's prescriptions and dispensed Mother's medications for her each week, as Mother took eight to ten pills every day. Mother was diagnosed with pulmonary fibrosis in 2011 and also used oxygen every day. Sharon sometimes scheduled Mother's doctor's appointments and arranged for Mother's doctors to call her rather than Mother if there was an issue with testing or other matters. Sharon testified that Mother could drive until the last year or two of her life but acknowledged that she (or her daughter) always drove Mother to her doctor's appointments and also accompanied Mother when she saw the doctor.

         Sharon also drove Mother on every occasion that she went to her attorney's office. However, Sharon remained in the lobby or sat on the porch while Mother met with the attorney. Sharon sometimes paid the attorney's invoice from Mother's account before leaving if Mother's hand was hurting from arthritis or if Mother simply asked her to do so. Mother executed a document legally granting Sharon power of attorney in 2011. However, Sharon conceded at trial that Mother believed that she possessed power of attorney even before then, and Sharon did not tell Mother otherwise. Sharon said, "in my mom's mind, I was the power of attorney."

         Sharon drove Mother to the attorney's office in November 2013 when Mother revoked her prior will and executed a new one. Sharon testified that she did not know at the time that Mother executed a new will and that she never discussed the will with Mother thereafter. Sharon's husband similarly testified that he never spoke with Mother about her will, although he acknowledged that Mother mentioned that she needed to make a will and that he told her to contact her attorney. Sharon's adult daughter testified that she knew Mother had made a will but that she did not have any input regarding its creation.

         Sharon was asked whether she had ever filed for bankruptcy and responded that she had in the 1970s or '80s. However, Plaintiffs subsequently introduced records indicating that Sharon was also in bankruptcy from 1999 to 2006. Sharon and her husband both testified that Mother was able to manage her own finances. By April of 2011, however, the statements for Mother's bank accounts were mailed directly to Sharon's home rather than Mother's home. Sharon testified that the address change was made because Mother's bank statements were missing from her mailbox for several months in a row. Regardless of where Mother was staying at the time, Sharon's husband also picked up Mother's remaining mail nearly every day from Mother's mailbox.

         Sharon's name was also listed on Mother's bank accounts. She testified that she sometimes signed Mother's checks because Mother had arthritis in her hands. Sharon estimated that she wrote 50 to 75 checks on Mother's checking account over the years. Sharon initially testified that she had never written any checks to herself from Mother's account but later said she did so only at Mother's direction.

         A certified document examiner, Jane Eakes, also testified at trial. She examined numerous checks and documents from Mother's bank accounts and concluded that 278 checks were signed by someone other than Mother between 2010 and 2013. Sharon was asked about many of these checks at trial. She denied most of the findings by Ms. Eakes and insisted that the disputed checks were actually signed by Mother, even though Sharon admitted to completing the top part of the checks. Many of the checks that were purportedly signed by Mother were made payable to Sharon or her husband with the notation "Loan" on the memo line. These checks with "Loan" notations totaled around $15, 000. Sharon testified that she repaid Mother for all of these loans.[3] When asked for proof, she said that she paid the loans back in cash and that the repayments would not be reflected as deposits on Mother's bank statements because Mother would always put the money in her wallet or drawer or Bible. During her deposition, Sharon was asked if Mother would immediately deposit cash or keep it "laying around the house, " and Sharon responded that she would deposit it except for about $200 in spending money.

         Many other checks from Mother's account were made payable directly to Sharon or her husband without any notation regarding the reason for the check. Ms. Eakes concluded that Sharon also signed Mother's name on these checks, payable either to Sharon or her husband, which totaled over $20, 000. Sharon denied signing the checks and insisted that she completed the top part of the checks while Mother signed them. Sharon testified that some of these checks were basically gifts from Mother because of everything she and her husband did for Mother.

         Checks were also written from Mother's account for new appliances that were delivered to Sharon's house. Sharon testified that Mother wrote these checks, for the purchase of a dishwasher, range, microwave, and end tables, but she insisted that she repaid Mother in cash. More checks were written from Mother's account for new windows for Sharon's home, at a total cost of over $5, 000. Sharon testified that Mother bought the windows for her as a gift. Again, she disputed Ms. Eakes's conclusion that Sharon had signed the checks herself.

         Sharon also admitted to using Mother's Bank of America credit card. Sharon insisted that she was added as an "an authorized signer" on the account, but the records subpoenaed from Bank of America made no mention of Sharon having such authority. Sharon testified that she always paid for her portion of the charges on the credit card bill every month. She also testified, initially, that Mother always paid her own portion of the bill in full every month and never let a bill remain outstanding. However, when asked about credit card statements indicating that the Bank of America card had a $5, 000 balance after Mother died, she claimed that Mother only paid her bills in full most of the time. Sharon testified that she offered to continue paying the bill after Mother died but that Bank of America forgave the balance when it was notified of Mother's death.

         Sharon denied that she ever tried to keep Mother from her other three children - Gary, Rita, and Roger. She testified that nothing prevented Plaintiffs from visiting with Mother either at Mother's own home or at Sharon's home while Sharon and her husband worked during the day. Sharon and her husband both insisted that Plaintiffs were welcome to visit Mother at their home anytime.

         Each of Sharon's siblings also testified. The oldest child was Gary. He also resided in Mount Juliet and was retired. Gary testified that he and Father did not speak for a period of about eleven years due to an argument they had around 1994.[4] Still, Gary testified that he maintained a good relationship with Mother despite his dispute with Father. He testified that he still talked to Mother quite often and visited with her occasionally either at his house or at Mother's house when he knew Father was not home. Gary testified that when he found out Father was in poor health, he swallowed his pride and went to see him, and the two reconciled (apparently around 2007). Gary said that he and Father had a good relationship and spent quite a bit of time together thereafter, and Father still wanted him to be the executor of his will.[5] Gary testified that he and Father were both competition shooters in the past and that Father gave him two pistols and a sword from his service in World War II before he died.

         Gary testified that his relationship with Mother was very good after Father died and that he spent time with her regularly, as Father had asked Gary to take care of Mother. However, he testified that his relationship with Sharon began to deteriorate after Mother's heart surgery. Gary said that Sharon became convinced that his wife was trying to put Mother in a nursing home. Gary's wife was a nurse at the hospital where Mother had open heart surgery. Gary testified that his wife was discussing Mother's rehabilitation with her surgeon and that Sharon became "livid" and threatened to call Mother's lawyer to stop him and his wife from interfering with Mother's care. Thereafter, Mother made statements to Gary and to his brother Roger indicating her belief that Gary's wife wanted to put her in a nursing home. Gary said that Mother would not have a pleasant conversation with his wife thereafter.

         Gary said that his feelings toward Sharon began to change when she started "changing and trying to control" Mother. Gary explained that he took Mother to a postoperative doctor's appointment in 2010, at Mother's request, and that Sharon showed up uninvited and insisted that she had to be present for the appointment because she was "the POA." (At that point in time, Sharon was not actually the power of attorney for Mother, as Mother did not execute the power of attorney until May 2011. However, Mother apparently believed that Sharon was the power of attorney.) Gary testified that he offered to take Mother to other appointments but Mother would respond, "No, I can't. I have to let Sharon do that."

         According to Gary, when he visited Mother, either Sharon or her husband would follow them from room to room or outside and would not permit them to talk alone. Eventually, Sharon began to accuse Gary of stealing things from Mother. Gary testified that Sharon accused him of stealing a gun that Sharon claimed Father promised to her. However, the gun was found in Mother's gun safe after she died, and it was listed in the inventory of Mother's property filed with the court. Gary testified that he never had a key to Mother's house and did not have access to her safe.

         Gary said that it became difficult for him to see Mother in later years because he could not reach Mother by phone, and when he stopped by Mother's house, sometimes he was able to see Mother and sometimes he was not. He explained that Mother sometimes refused to answer the door. He testified that he would see Mother inside the house and call her, but she still would not answer. He said that sometimes Mother would come to the door but say, "What do you want? I can't let you in." Other times Mother would say "if you come in, you can't go in the basement" (which was where the gun safe was located).

         Gary testified that Mother complained to him a couple of times in 2012 and 2013 about not having enough money, which he found odd because of the extent of the assets Father left for her. Gary testified that Mother wanted to have a garage sale to raise money. He believed that Mother did not know how much money she really had. Gary said Mother told him numerous times over the years, as late as 2013, that she had four children and that everything she owned was to be sold, with the proceeds being split four ways among them. He said she would always hold up four fingers as she said this. Gary believed that Sharon heavily influenced Mother in connection with her November 2013 will. He agreed that Mother was strong-willed and forceful but also said that she could be influenced, and "if she got something in her mind, she would keep it that way."

         Pursuant to the November 2013 will, Gary received $4, 000 from Mother's estate and "any guns currently in his possession." Mother also gave her attorney handwritten letters to her children to be opened after her death. The letter to Gary was written in May 2014, just a few months before she died in December 2014. It stated that she and Father loved Gary very much and that Gary grew up to be a fine man, but that he "forgot all the things that mean so much." Mother's letter to Gary acknowledged that "[Father] was very hard on you" but suggested that Gary forgot the things Father did for him. The letter stated that Gary "stayed away for fifteen years called twice" then "came around [to] see what you could get from him" when Father got sick. Mother continued,

Even the [gun] club men thought you should have ma[d]e up and let by gones be gone. But you didn't. Now it's too late.
Well Gary I'm gone too. You should have come to see me I have been pretty sick.
I have one thing to say. It's in the Bible. Honor thy Father thy Mother. But Gary you forgot that. Good Luck Gary and God Bless You and your family.

         Love You, Mother

         Gary testified that he was confused by this letter because he did visit Mother in the years before she died and made even more attempts to visit her but was unsuccessful. He also noted that during the period that he and Father were not speaking, he still maintained contact with Mother, so he believed her comment about staying away fifteen years and calling twice was factually untrue.[6] Gary was also surprised by Mother's suggestion that he came around before Father died to "see what [he] could get" because he did not ask for anything from Mother or Father. He said her comment "just didn't seem to fit."

         Mother's younger daughter, Rita, testified as well. She resided in Murfreesboro. Rita testified that she always had a good relationship with Father, but she acknowledged getting into a physical altercation with Sharon before Father died. Rita said that Sharon told her on numerous occasions that Mother only had one daughter, referring to herself. Rita described one occasion when she was visiting with Father and talking with him on the couch, and Sharon approached Mother, who was standing nearby, and whispered in her ear. Mother then said to Rita, "You need to speak louder where I can hear. You're sucking up to the wrong person. I am going to outlive him." Rita testified that Sharon started laughing.

         According to Rita, Sharon told her quite frequently that "everything in regards to Mom had to be cleared with her, because she was the power of attorney." Rita confirmed that Sharon "became infuriated" when Gary's wife suggested a rehabilitation center for Mother after her surgery. According to Rita, Sharon said that Gary's wife was interfering in her area as the power of attorney and that if she did not stay out of Sharon's business, Sharon would get a restraining order against her. Rita testified that she offered to take Mother to doctor's appointments many times and that Sharon always declined her offers. Rita testified that she also invited Mother to come to her home on numerous occasions, and Mother indicated a desire to go, but Sharon insisted that Rita did not know how to administer Mother's medication, take care of her oxygen, and meet Mother's dietary needs due to her diabetes.

         Rita testified that she visited Mother at Sharon's house but that it was very uncomfortable because Sharon and her husband would not allow her to have any private time with Mother and listened to their conversations. She testified that on one occasion she took Mother to play bingo after Father died, and Mother told her that Sharon had instructed their brother Roger to meet them there and listen to their conversations. Rita also testified that Mother made comments to her about not knowing how much money she had and her need to have a yard sale.

         Rita said that Sharon accused her of stealing various things over the years, including Sharon's husband's wedding ring. Sharon also accused Rita of taking out a loan in Sharon's husband's name and opening a Macy's ...


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