IN RE THE ESTATE OF LOUISE J. ASLINGER
Session: April 18, 2018
from the Circuit Court for Knox County No. 2-62-16 William T.
action involves a will contest in which the decedent's
daughter alleged that the current will was void due to either
undue influence or lack of mental capacity. The case
proceeded to a jury trial, after which the jury invalidated
the will. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
O. Presnell and Betty J. Ferguson, Knoxville, Tennessee, Pro
L. Summers, Knoxville, Tennessee, for the appellee, Sharon E.
W. McClarty, J., delivered the opinion of the Court, in which
D. Michael Swiney, C.J. and Richard H. Dinkins, J., joined.
W. McCLARTY, JUDGE.
Aslinger ("Decedent") died on February 3, 2015, at
the age of 84. She was survived by one daughter, Sharon Foust
("Daughter"), age 62. Decedent was self-sufficient
and lived alone until she fell and sustained injuries in
April 2014. She was admitted to NHC Nursing Home
("NHC") to aid her in her recovery efforts before
returning home. Upon returning home, she sustained more
injuries and suffered a stroke a few days later in June 2014.
Decedent returned to NHC for further care. At that time,
Daughter attempted to secure a power of attorney to act on
her behalf. Unbeknownst to her, Jewell Pressnell, who served
previously as a caretaker, had obtained a health care power
of attorney and a durable power of attorney on July 8.
was transferred to Elmcroft Assisted Living
("Elmcroft") on July 23. While at Elmcroft,
Decedent refused to submit to tube feeding, thereby leading
doctors to advise Ms. Pressnell that the prognosis was grim.
Thereafter, Ms. Pressnell secured another durable power of
attorney on August 1. She also arranged for the execution of
a new will with the help of an attorney, Mr. Bell. Prior to
drafting the will, Mr. Bell and his wife, Dorotha Bell,
interviewed Decedent in Ms. Pressnell's presence on
August 8. Four to five hours following the interview,
Decedent was rushed by ambulance from Elmcroft to the
emergency room at Tennova Healthcare Physicians Regional
Medical Center ("Tennova").
next day, Mrs. Bell secured two witnesses and met Ms.
Pressnell and Decedent in Decedent's hospital room, where
she signed the will. The will, dated August 9, named Ms.
Pressnell as a co-executor and included her and her daughter,
Betty Ferguson, as beneficiaries. Daughter was also included
in the will, to a lesser extent. This will presumably
invalidated a prior will, dated September 22, 2005, in which
Decedent named Daughter as executrix and devised her
"real property" to Daughter.
Daughter reported her suspicions of elder abuse to the Knox
County Sheriff's Office on August 5. Detective Jeremy
McCord was assigned to the case and ultimately found the
complaint unfounded. However, Decedent advised him that
Daughter had slapped her twice. On the basis of
Decedent's claim of physical abuse, Detective McCord
advised Daughter not to contact Decedent.
was discharged from Tennova on August 14, and readmitted to
NHC. On October 4, Decedent was taken by Ms. Pressnell to
live with Mrs. Ferguson, who charged Decedent $100 per day to
live in her residence. Decedent remained there until her
death on February 3, 2015. Thereafter, Daughter filed this
action to contest the will, naming Ms. Pressnell and Mrs.
Ferguson (collectively "Representatives") as
parties and claiming that the will was void as a result of
undue influence and Decedent's lack of the requisite
case proceeded to a jury trial, at which several witnesses
testified. Connie Cabage and Ruth Heiser testified that Mrs.
Bell asked for their assistance in witnessing the signing of
a will on August 9. They accompanied Mrs. Bell to Tennova
between 11:30 a.m. and 12:00 p.m. and witnessed
Decedent's act of signing the will. They claimed that
Decedent was aware that she was signing her will and that
they did not witness any behavior that would lead them to
believe that Decedent was incompetent. Ms. Heiser confirmed
that Ms. Pressnell was present in the room during that time.
Bell testified that Mr. Bell, her husband who is now
deceased, practiced law for approximately 53 years prior to
his passing. She recalled that Ms. Pressnell contacted her in
August 2014 while she and Mr. Bell were vacationing in
Nashville. Ms. Pressnell requested assistance in drafting a
will, and Mrs. Bell advised her that they would contact her
upon their return. Ms. Pressnell contacted them again prior
to their return and following their return. Ms. Pressnell
advised her that she held a power of attorney for Decedent
and that Decedent sought to leave her belongings to
Bell stated that she and Mr. Bell met with Ms. Pressnell and
Decedent at Elmcroft on August 8, 2014, around 3:30 p.m. She
recalled taking notes during the meeting and also taping the
interaction to aid Mr. Bell in his representation because he
was visually handicapped and had difficulty hearing. A
portion of the recording was played for the jury in which
Decedent identified herself and provided her address, age,
and date of birth, among other information. Upon questioning,
Decedent claimed that her house was worth approximately $110,
000. The following colloquy then occurred:
Mr. Bell: About $110, 000, all right. Let me ask you this:
Who do you want to have the most of your property?
Mr. Bell: Jewell? Jewell, that's your sitter and your
Mr. Bell: Right?
Mr. Bell: And you want her - - do you want her to have the
real estate and the personal - -
[Decedent]: I want her and her daughter to have 50 percent.
Mrs. Bell: She wants Jewell's daughter to have 50
[Decedent]: Jewell's daughter.
Mr. Bell: You want Jewell to have 50 percent.
Mr. Bell: And you want Jewell's daughter to have 50
Mr. Bell: Is that correct?
Mr. Bell: All right. That includes all of your property?
Mr. Bell: The house, lot, and all your personal property
which is cars, money in banks, stocks and bonds, you want all
that to go to Jewell and her daughter?
Mr. Bell: At 50-50?
Mr. Bell: Is that correct?
Mr. Bell: All right. Now, let me ask you this: Why do you not
want to give - - it's none of my business, you don't
have to give anybody anything you don't want to. Why do
you not want your daughter to have anything?
then claimed that Daughter "gave [her] a lot of
problems" and slapped her and slammed her down. Mr. Bell
Mr. Bell: When? Has that occurred more than one time?
Mr. Bell: Just one time?
Mr. Bell: Is that - - was it a recent time?
Mr. Bell: Has that been within the last year?
[Decedent]: For years.
Mr. Bell: But it's happened just one time[?]
Mr. Bell: Twice in the last year?
Mr. Bell: She knocked you down and slapped you?
Mr. Bell: And so, therefore, you don't want to leave her