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In re Estate of Aslinger

Court of Appeals of Tennessee, Knoxville

May 17, 2018

IN RE THE ESTATE OF LOUISE J. ASLINGER

          Session: April 18, 2018

          Appeal from the Circuit Court for Knox County No. 2-62-16 William T. Ailor, Judge

         This 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

          Jewell O. Presnell and Betty J. Ferguson, Knoxville, Tennessee, Pro Se.

          Edward L. Summers, Knoxville, Tennessee, for the appellee, Sharon E. Foust.

          John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney, C.J. and Richard H. Dinkins, J., joined.

          OPINION

          JOHN W. McCLARTY, JUDGE.

         I. BACKGROUND

         Louise 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.

         Decedent 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").

         The 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.[1]

         Meanwhile, 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.

         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 mental capacity.

         The 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.

         Mrs. 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 Pressnell.

         Mrs. 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?
[Decedent]: Jewell.
Mr. Bell: Jewell? Jewell, that's your sitter and your caretaker?
[Decedent]: Uh-huh.
Mr. Bell: Right?
[Decedent]: Uh-huh.
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 percent.
[Decedent]: Jewell's daughter.
Mr. Bell: You want Jewell to have 50 percent.
[Decedent]: Uh-huh.
Mr. Bell: And you want Jewell's daughter to have 50 percent?
[Decedent]: Uh-huh.
Mr. Bell: Is that correct?
[Decedent]: Uh-huh.
Mr. Bell: All right. That includes all of your property?
[Decedent]: Uh-huh.
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?
[Decedent]: Uh-huh.
Mr. Bell: At 50-50?
[Decedent]: Yes.
Mr. Bell: Is that correct?
[Decedent]: Uh-huh.
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?

         Decedent then claimed that Daughter "gave [her] a lot of problems" and slapped her and slammed her down. Mr. Bell continued,

Mr. Bell: When? Has that occurred more than one time?
[Decedent]: No.
Mr. Bell: Just one time?
[Decedent]: Uh-huh.
Mr. Bell: Is that - - was it a recent time?
[Decedent]: Huh?
Mr. Bell: Has that been within the last year?
[Decedent]: For years.
Mr. Bell: But it's happened just one time[?]
[Decedent]: Twice.
Mr. Bell: Twice in the last year?
[Decedent]: Uh-huh.
Mr. Bell: She knocked you down and slapped you?
[Decedent]: Uh-huh.
Mr. Bell: And so, therefore, you don't want to leave her ...

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