KIMBERLY VAN FLOYD et al.
LISA A. SHIRLEY AKINS et al.
Session April 20, 2017
from the Chancery Court for Monroe County No. 16698 Jerri
case concerns a dispute involving Lisa Akins, Kimberly Floyd,
and Donna Helms, the three daughters of Eldon Shirley (the
deceased). The initial dispute regards a deed from the
deceased to Akins, reserving a life estate. Prior to the
execution of the deed, the deceased executed a power of
attorney appointing Akins as his attorney-in-fact.
Thereafter, Floyd filed this action to set aside the deed on
the ground of undue influence. She also alleged that Akins
converted other assets of the deceased. Helms later filed an
intervening complaint adopting the allegations in Floyd's
complaint. Helms prayed that the real property deeded to
Akins be declared a resulting and/or constructive trust.
Akins filed a counterclaim alleging that Helms was indebted
to her. Akins asked the court to compel Helms to file an
accounting of the funds in dispute. The trial court
bifurcated the trial. It first heard the undue influence
claim. The court held that the deed was procured by the undue
influence of Akins. The second stage of the trial involved
the status of other assets and accounts. The court determined
that specific payments to Helms were loans. The court found
that other payments to and charges made by Helms involved no
promise to repay and were gifts or payments for the care of
the deceased. Akins appeals. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed; Case Remanded
J. Levitt, Jr., Knoxville, Tennessee, for the appellant,
A. Shirley Akins. Melanie E. Davis, Maryville, Tennessee, for
Kimberly Van Floyd. Martha Meares, Maryville, Tennessee, for
the appellee, Donna Kay Helms.
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which D. Michael Swiney, C.J., and John W.
McClarty, J., joined.
CHARLES D. SUSANO, JR., JUDGE
2003, the deceased's wife, Evelyn Shirley, passed away.
Upon his wife's death, the deceased became the sole owner
of ninety acres of farm land (the farm property). Prior to
his wife's death, the deceased, due to his poor health,
was totally dependent on her. After her death, the daughters
agreed that the deceased would not be able to take care of
himself. They agreed that he needed to move to Tennessee
where his daughters lived. The deceased moved to Tennessee to
live with Akins on the farm property.
4, 2003, Akins took the deceased to his bank where he added
her to his bank account as a joint account holder with right
of survivorship. On July 17, 2003, the deceased executed a
power of attorney designating Akins as his attorney-in-fact.
That same day, the deceased executed a deed conveying the
farm property to Akins. He reserved a life estate. Prior to
his death, multiple assets belonging to the deceased were
placed in Akins's name, including a truck, a mobile home,
and $50, 000 in certificates of deposit which had been
purchased with his funds.
in 2003 and for a number of years, Akins and the deceased
provided financial assistance to Helms. This assistance came
in the form of money from the joint bank account, money from
Akins's personal bank account, and charges by Helms on a
credit card in Akins's name. Checks were written to Helms
from the joint account both before and after the deceased
passed away. Some of the checks contained a notation
indicating that they were loans while other checks had no
September 4, 2007, Akins wrote a check payable to cash from
the joint account for $10, 000. This distribution was
authorized by the deceased. It was to be used by Helms's
daughter to purchase a car. Akins, however, determined that
Helms's daughter did not need a car. She never used the
money to purchase the vehicle nor was the money returned to
deceased held an individual retirement account with Edward
Jones. In 2009, he designated Floyd as the sole beneficiary
of the account.
February 16, 2010, the deceased passed away. On June 4, 2010,
Floyd filed a complaint seeking to set aside the deed
conveying the farm property to Akins. She alleged that a
confidential relationship existed between Akins and the
deceased and that Akins made fraudulent representations to
the deceased. She claimed that Akins told the deceased that
Helms wanted to sell the farm property and that, if he deeded
it to Akins, she would ensure that the property was not sold.
She also asserted that Akins told the deceased that deeding
the property to Akins would protect it in case he was ever
placed in a nursing home. Floyd asked the trial court to set
aside the deed to the farm property on the basis of undue
influence or for want of consideration. Floyd also asserted
that Akins transferred assets of the deceased to herself.
Floyd asked the court to order Akins to provide an accounting
of all assets of the deceased that came into her possession.
She sought a judgment for conversion of the deceased's
August 9, 2011, Helms filed an intervening complaint. She
adopted the allegations in Floyd's complaint. She also
asked the court to declare the farm property a resulting
and/or constructive trust.
November 2, 2011, Akins filed a counterclaim. In her
counterclaim, she alleged that she loaned Helms money and
allowed her to use her credit card. She asked the court to
grant her credit for the value of payments made to Helms and
charges made by Helms on Akins's credit card. She also
claimed that Helms and Floyd each received cash and property
from their parents in excess of one-third of the value of the
assets she received from their parents.
first phase of the trial, the court heard the issue of undue
influence with respect to the deed to the farm property. On
July 12, 2013, the trial court entered an order setting aside
the deed to the farm property on the basis of undue
influence. The court found that the execution of the power of
attorney in favor of Akins created a confidential
relationship between Akins and the deceased. The court also
found numerous suspicious circumstances in the way Akins
handled the deceased's affairs and found that the
deceased was in a deteriorating mental and physical
condition. Based on the circumstances surrounding the
execution of the deed, the trial court set aside the deed to
the farm property.
August 7, 2015, the trial court entered an order resolving
the remaining issues. The court also filed a master asset
list that classified each asset as an estate asset or a
non-estate asset. Pertinent to this appeal, the trial court
classified the following assets: (1) three checks totaling
$3, 000 written to Helms prior to the deceased's death
were loans and returnable as assets of the estate; (2) a $10,
000 check authorized by the deceased to purchase a vehicle
for Helms's daughter and deposited into Akins's
personal bank account is an estate asset and should be
returned to the estate; and (3) the deceased's Edward
Jones account was a gift to Floyd and is a non-estate asset.
The court also found that the parties stipulated that a
single wide trailer, a modular home, and land in Scottsboro,
Alabama are assets of the estate. The court determined that
Helms owed Akins $1, 000 for living expenses that Akins paid
to her. Finally, the court found that there was no agreement
for Helms to repay Akins for transfers from Akins's
personal bank account to Helms's bank account or for
Helms's use of a credit card for which Akins was
responsible. Akins appeals.
raises the following issues:
Whether the deed recorded on August 2, 2003, from the
deceased to Akins reserving a life estate was obtained as a
result of undue influence, and thereby void;
Whether the court should have awarded Akins $14, 738.93
instead of $3, 000 for checks written to Helms from the joint
account while Helms was living on the farm property prior to
the death of the deceased;
Whether the trial court should have awarded Akins $7, 500
from Helms for checks Akins wrote to Helms after the death of
the deceased from the joint account;
Whether the court should have awarded Akins $13, 300 from
Helms for bank transfers from Akins's bank account to
Helms's bank account after Helms filed bankruptcy;
Whether the $10, 000 that was intended to purchase a car for
Helms's daughter should be returned to the estate by
Helms or by Akins;
Whether the court should have awarded Akins $17, 310.20 from
Helms for the use of Akins's credit card;
Whether the court erred in awarding the Edward Jones
investment account to Floyd instead of to the estate or
one-third to Akins;
Whether the court erred in finding that the parties
stipulated that the single wide trailer, modular home, and
Scottsboro land are all part of the estate; and
Whether the court should have permitted each co-plaintiff to
cross-examine each plaintiff and each plaintiff's
non-jury case, our standard of review is de novo upon the
record of the proceedings below; however, the record comes to
us burdened with a presumption of correctness as to the trial
court's factual determinations, a presumption we must
honor unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d); Wright v. City of Knoxville, 898
S.W.2d 177, 181 (Tenn. 1995). There is no presumption of
correctness as to the trial court's legal conclusions.
Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn.
2002); Campbell v. Florida Steel Corp., 919 S.W.2d
26, 35 (Tenn. 1996).
appeal, Akins argues that the trial court erred in setting
aside the deed to the farm property on the basis of undue
influence. She claims that the deceased was competent and
strong willed when he executed the deed. She argues that the
deceased's prescribed medication and abuse of alcohol did
not affect his will or ability to execute the deed. Akins
also asserts that the deceased was not completely reliant on
her and was still writing checks and making purchases on his
own. According to Akins, she did not tell the deceased that
the farm property would go to a nursing home if he did not
transfer it to her but Akins noted that information would be
good for him to have. With respect to the execution of the
power of attorney and the deed, Akins claims that she did not
go to the attorney's office with the deceased when he
executed these documents and did not influence their
execution. Finally, she asserts that the deed was delivered
before the power of attorney became effective, and there is
no presumption of undue influence in the case.
claims that the doctrine of laches should apply to bar the
action to set aside the deed to the farm property. She argues
that the deed was executed in August 2003, but Floyd waited
seven years, until June 2010, to file the action challenging
the deed. Akins claims that, because of the lapse in time,
the deceased could not testify about his intentions and those
involved in the execution of the deed had no memory of it.
She claims that honoring the deed is fair to the deceased.
trial court found that the execution of the power of attorney
from the deceased to Akins created a fiduciary relationship.
In its July 12, 2013, order, the court initially found that
the execution of the power of attorney created a presumption
that any transfer from the deceased to Akins was procured by
undue influence and that the burden was on Akins to rebut
that presumption. The court, however, later amended and
corrected its order "to reflect the execution of the
power of attorney creates a confidential relationship but the
execution alone does not create a presumption of undue
court found that, in addition to the confidential
relationship, there were numerous suspicious circumstances.
The court found the following suspicious circumstances: (1)
Akins's statement to the deceased that deeding her the
property would keep a nursing home from getting it; (2)
Akins's statement to the deceased that she would divide
the farm property equally between the daughters; (3) the
medications the deceased was taking along with his dependence
on Akins made him susceptible to undue influence; (4) the
deceased's depression after the death of his wife
predisposed him to rely heavily on Akins; and (5) the
deceased was abusing alcohol and prescribed Xanax and
hydrocodone, which weakened his will. The court concluded
that "[a]ll of these facts amount to suspicious
circumstances such that the court finds [Akins] unduly
influenced [the deceased] in his financial dealings to her
benefit." Akins also failed to prove that the deceased
received any independent advice. There were independent
witnesses that testified that the deceased's intention
was always that the farm property be divided equally and that
the deceased was upset when he felt that Akins would not
honor his wishes. The court found against Akins on
credibility and found evidence of Akins's willingness to
manipulate the deceased. Based on the confidential
relationship accompanied by suspicious circumstances, the
trial court held that Akins unduly influenced the deceased.
As a consequence, the court set aside the deed to the farm
apply the doctrine of undue influence 'when one party,
such as a grantee, is in a position to exercise undue
influence over the mind and the will of another, such as a
grantor, due to the existence of a confidential
relationship.' " In re Estate of Price, 273
S.W.3d 113, 125 (Tenn. Ct. App. 2008) (quoting Brown v.
Weik, 725 S.W.2d 938, 945 (Tenn. Ct. App. 1983)).
"The most common way of establishing the existence of
undue influence is 'by proving the existence of
suspicious circumstances warranting the conclusion that the
will was not the testator's free and independent
act.' " Estate of Hamilton v. Morris, 67
S.W.3d 786, 792-93 (Tenn. Ct. App. 2001). Commonly recognized
suspicious circumstances include the following:
(1) a confidential relationship between the testator and the
beneficiary; (2) the testator's poor physical or mental
condition; (3) the beneficiary's involvement in the
procurement of the will in question; (4) secrecy concerning
the will's existence; (5) the testator's illiteracy
or blindness; (6) the unjust or unnatural nature of the
will's terms; (7) the testator being in an emotionally
distraught state; (8) discrepancies between the will and the
testator's expressed intentions; and (9) fraud or duress
directed toward the testator.
these circumstances are frequently applied "in the
context of a will contest-one of the more frequent actions
that may involve an undue influence claim- much of it is
generally applicable to a claim of undue influence in another
context . . . ." Lewis v. Lewis, No.
E2014-00105-COA-R3-CV, 2015 WL 1894267, at *8 (Tenn. Ct.
App., filed April 27, 2015). This court has extended the
application of these factors to set aside a deed on the basis
of undue influence. See Francis v. Barnes, No.
W2012-02316-COA-R3-CV, 2013 WL 5372851, at *6 (Tenn. Ct.
App., filed Sept. 23, 2013). "[T]here exists no
prescribed number of suspicious circumstances which must be
met in order to invalidate an action . . . ."
Lewis, 2015 WL 1894267, at *7.
a contestant [proves] the existence of a confidential
relationship, together with a transaction that benefits the
dominant party to the relationship or another suspicious
circumstance, a presumption of undue influence arises that
may be rebutted only be clear and convincing evidence."
Kelley v. Johns, 96 S.W.3d 189, 196 (Tenn. Ct. App.
2002). A confidential relationship exists "where
confidence is placed by one in the other and the recipient of
that confidence is the dominant personality, with ability,
because of that confidence, to influence and exercise
dominion and control over the weaker or dominated
party." Id. "[W]here there is a
'confidential relationship, followed by a transaction
wherein the dominant party receives a benefit from the other
party, a presumption of undue influence arises, that may be
rebutted only by clear and convincing evidence of the
fairness of the transaction' " Childress v.
Currie, 74 S.W.3d 324, 328 (Tenn. 2002) (quoting
Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn.
1995)). "A confidential relationship is any relationship
which gives one person dominion and control over
another." Id. Undue influence involves
"substituting the will of the person exercising it for
that of [another]." In re Estate of Hill, No.
E2006-01947-COA-R3-CV, 2007 WL 4224716, at *4 (Tenn. Ct.
App., filed November 30, 2007). The essential question is
whether the will is that of the person allegedly influenced
or that of another. Id.
the record reflects that the power of attorney was not used
by Akins in procuring the deed from the deceased, we do find,
however, that there was a confidential relationship between
Akins and the deceased. Prior to the death of the
deceased's wife, the deceased was dependent on her as his
caregiver. Upon her death, he was so distraught that he could
not attend her funeral. Because of his dependence on his
wife, the deceased moved in with Akins immediately after her
death. At that time, he was unable to care for himself. He
was in a state of deteriorating health and suffered from a
multitude of health issues, including COPD, emphysema, and
diabetes. He suffered from depression and was in a weakened
state. These problems caused him to need the assistance and
care of Akins. She had considerable influence over the
deceased. Even if the deceased was not completely reliant on
Akins as she claims and handled many of his own affairs, she
exercised significant influence over him and he was quite
reliant on her. Accordingly, we find that Akins exercised
sufficient dominion, influence, and control over the deceased
to create a confidential relationship.
find that there were other suspicious circumstances. One
common suspicious circumstance is the poor physical or mental
condition of the grantor. As already discussed, the deceased
suffered from many health problems. He had poor physical
health to the extent that he moved in with Akins immediately
after his wife's death. He also had a poor mental
condition in that he suffered from depression and was
prescribed medication for that.
frequently relied upon suspicious circumstance is the
beneficiary's involvement in procuring the transaction in
question. On this issue, the trial court made a credibility
determination. Floyd and Helms alleged that Akins told their
father that deeding her the farm property would keep it from
going to a nursing home. With respect to this statement, the
trial court specifically found Floyd and Helms credible. The
trial court found that "[t]his statement was intended to
influence the action of [the deceased]."
trial court's credibility determinations are accorded
great weight. The Supreme Court has stated the following:
[A] reviewing court must give "considerable
deference" to the trial judge with regard to oral,
in-court testimony as it is the trial judge who has viewed
the witnesses and heard the testimony. This is particularly
true when the credibility of the witnesses and the weight
assigned to their testimony are critical issues. Moreover,
because there is no requirement that a trial court make
express findings of fact regarding a witness's
credibility, the absence of such findings does not alter the
applicable standard of review. Indeed, the trial court's
findings with respect to credibility and the weight of ...