IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER 21, 2004 Session
SANDRA KAYE KEMP PARISH, ET AL. v. JERRY DONALD KEMP, ET AL.
Direct Appeal from the Chancery Court for Carroll County
No. 01-CV-32 Ron Harmon, Chancellor
No. W2003-01652-COA-R3-CV - Filed March 2, 2005
This appeal arises out of a complaint filed by Appellants seeking to invalidate certain inter vivos
transfers made by Decedent as well as the Wills executed by Decedent while living with Appellees.
After a hearing in which a jury received evidence from numerous witnesses and exhibits, Appellants
sought a directed verdict on whether, as a matter of law, the burden to prove the validity of the Wills
and the inter vivos transfers shifted to Appellees. The trial court denied this motion, and the jury
returned a verdict in favor of Appellees, upholding Decedent’s Last Will and Testament and the inter
vivos transfers. Review by this Court is sought by Appellants, and, for the following reasons, we
reverse.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed and
Remanded
ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.
Kenneth R. Jones, Jr., Nashville, TN, for Appellants
Robert T. Keeton, Jr., Laura A. Keeton, Huntingdon, TN, for Appellees
OPINION
Facts and Procedural History
Mamie Kemp Fesmire (“Aunt Mamie” or “Decedent”) was a resident of Carroll County for
a majority of her life and lived with her husband, E. Howard Fesmire (“Uncle Howard”), until he
died in May 1996. Aunt Mamie and Uncle Howard had no children of their own, and, therefore,
Uncle Howard’s estate passed to Aunt Mamie upon his death.1 For a short time following Uncle
Howard’s death, Aunt Mamie lived by herself in her home in Atwood, Tennessee.
Shortly after her husband died, Aunt Mamie, who was eighty-nine years old, fell and injured
herself. While moving her mother, Mildred Inell Kemp Coleman, into her home, Marilyn Aten
(“Ms. Aten”), one of Aunt Mamie’s nieces, received a call from Annie Jo Kemp (“Ms. Kemp”),
notifying her of Aunt Mamie’s injury. After having surgery and spending time in a rehabilitation
center, Aunt Mamie moved in with Ms. Aten and her family in their home in Pegram, Tennessee.
While living with Ms. Aten and her husband, Aunt Mamie refused to contribute to household
expenses or to the expansion of the house in order to have enough room for everyone living in the
home. Within a few weeks, it was decided that Aunt Mamie would move out of the Aten’s home.
Prior to her departure, Ms. Kemp suggested, after a discussion with Ms. Aten, that Aunt Mamie
should execute a power of attorney naming Ms. Kemp and Ms. Aten as Aunt Mamie’s joint
attorneys-in-fact. Former attorney and current general sessions judge James B. Webb prepared such
durable power of attorney2 and additionally prepared a codicil to Aunt Mamie’s Will executed in
1
This was pursuan t to Un cle H oward’s Last W ill and T estament.
2
The durab le power of attorney stated that Ms. Kemp and Ms. Aten would have
full power to act, for me and in my stead, to manage and conduct my personal business and
affairs, to execute and deliver deeds in my name, execute receipts, receive money and any
funds owed me in any man ner and deposit the same to my account in my bank, to endorse any
checks payab le to me for deposit in my bank, and to write, sign, give and deliver checks
against my persona l acco unt in my b ank, and in payment of any and all of my legal debts or
obligations; to demand and receive payment from creditors; and to sign all necessary
instruments, and to sell and convey and encum ber all of my right, title and interest in and
into, including b ut not limited to S ettlement Sheets, Co ntracts, W arranties and W arranty
Deeds conc erning a house and lot located in the town o f Atwood, 2 1st Civil District of
Carroll County, Tennessee, and more particularly described in Warranty Deed from Curtis
W . Younger to Howard E. Fesmire and wife, Mamie Fesmire dated August 27, 1962 and
recorded in Deed Book ___, Page ___ in the R egister’s Office of Carroll County, Tennessee,
and to otherwise manage my personal affairs and to sign any papers, documents or demands
in connection with any of my personal business as fully, completely and am ply, to all intents
and purp oses whatsoever, as I might o r could do if acting pe rsona lly.
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1988, amending the appointment of the executor3 to Ms. Kemp and Ms. Aten, and both documents
were executed by Aunt Mamie on July 12, 1996. Subsequently, after exploring the option of having
a professional caretaker live with Aunt Mamie in her home, she moved into the home of Ms. Kemp
and her husband, Jerry Donald Kemp (“Mr. Kemp” or, collectively with Ms. Kemp, the
“Appellees”), in Nashville, Tennessee.
Shortly after moving in with Mr. and Ms. Kemp, Aunt Mamie decided to revisit James
Webb’s law office, and Mr. and Ms. Kemp drove her to meet with him. At such meeting on August
9, 1996, Mr. Kemp “jokingly” said that he would become Aunt Mamie’s attorney-in-fact if she
transferred $200,000 to him and his wife, Ms. Kemp. In discussing the transfer of $200,000 to Mr.
and Ms. Kemp privately with Aunt Mamie, James Webb felt uncertain of whether she wished to
make such a transfer and decided against drawing up documents for the transfer. However, Aunt
Mamie executed another power of attorney worded exactly like the power of attorney executed on
July 12, 1996, except that it removed Ms. Aten’s name as an attorney-in-fact and replaced it with Mr.
Kemp’s name. Additionally, that same day, Aunt Mamie executed a second codicil to her 1988 Will
devising her house in Atwood, Tennessee, to Mr. and Ms. Kemp.4 Mr. and Ms. Kemp both testified
that the second power of attorney and codicil were executed upon Aunt Mamie’s suggestion.
After she started living with Mr. and Ms. Kemp, Aunt Mamie began changing the ownership
status of various assets. Specifically, she began renewing certificates of deposit not only in her name
but in Mr. and Ms. Kemp’s names with a right of survivorship, or they were made payable on Aunt
Mamie’s death to Mr. and Ms. Kemp.5 Such CD’s and checking accounts totaled approximately
$450,000, leaving approximately $290,000 to pass pursuant to Aunt Mamie’s Will. Mr. and Ms.
3
Aunt Mamie’s 1988 Will appointed her husband, Uncle Howard, executor of her estate and Ted
Fesm ire as an alternate exec utor.
4
The only other change the second codicil made was to place Elta Fesmire ’s share o f Aunt M amie’s
estate in a trust with M r. and Ms. Kemp named as the trustees. E lta Fesm ire was a sibling of Uncle Ho ward .
5
Specifically, a certificate of deposit at the Bank of Huntingdo n in the amount of $100,000 was placed
in the name of “Mamie Fesmire or Jerry D. Kemp and Annie Jo Kemp” with a right of survivorship on October 3, 1998.
Such CD was renewed again in 1999 and Aunt M amie died before the maturity date in 2000. A CD at Carroll Bank &
Trust in the am ount o f $10 0,00 0 in Aunt Mam ie’s name was made payable on death to Mr. and Ms. Kemp in September
1996. Such CD matured and was renew ed ev ery six months until Aunt M amie died. This C D, while originally paya ble
on death, was placed in joint ownership with a right of survivorship in 1 998 and continued in the name of “M amie
Fesmire or Jerry D. & Annie Jo Kemp” until Aunt Mamie’s death. A CD at Citizens Bank & Trust in the amou nt of
$100,000 was originally payable on death to Mr. and Ms. Kemp b ut became payab le to “either or survivo r” and finally
payable to “Mamie Fesmire or Jerry D. Kemp or Annie J. Kemp.” Such CD was renewed every six months. A CD at
Farmers and M ercha nts Bank in the amo unt of $63,0 00 w as issued in October 1996 in the name of “Mamie Fesmire –
Jerry D & Annie J Kemp POAs.” This CD was renewed in the same name and amount in 1997, but in 1998, the name
of the depositor changed to “Mamie Fesmire & Jerry D. Kemp & Annie Jo Kemp.” Additionally, the amount of the CD
increased to $100,000 in 1998. A checking account with Citizens Bank & T rust was originally in the name of “M amie
Fesmire c/o Annie Jo Kemp” but changed to list Mr. and M s. Kemp’s names on the account. Mr. and Ms. Kemp closed
the acc ount and had a ca shier’s check in the amount o f $22 ,142 .57 issued to them after Aunt Mamie died. Finally, an
advantage rate money market account with SunTrust Bank was created in the amount of $63,500 in the name of “M amie
Kemp Fesmire or Jerry D Kemp or Annie Jo Kemp.”
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Kemp and various bank employees testified that Aunt Mamie received private advice and counsel
from bank personnel before finalizing any changes in ownership status.
Additionally, Aunt Mamie began paying Mr. and Ms. Kemp’s monthly expenses. Such
expenses included the monthly notes on Mr. and Ms. Kemp’s 1996 Toyota Camry, paying off the
balance due on the 1999 Toyota Camry in the amount of $19,900.53, the car insurance for Mr. and
Ms. Kemp’s cars, the utility bills for Mr. and Ms. Kemp’s house, partial payment for Mr. and Ms.
Kemp’s new roof on their home in the amount of $2,000, the property taxes for Mr. and Ms. Kemp’s
house in 1999, Mr. and Ms. Kemp’s credit card bills, and paying off Mr. Kemp’s debt incurred at
Farmers and Merchants Bank in the amount of $15,400.
Finally, in November 1996, Aunt Mamie discussed executing a new Will and another power
of attorney. She met privately with an attorney, D.D. Maddox (“Maddox”), who discussed the
ramifications of her actions. After this meeting, she executed a third and final power of attorney,6
6
Though the final power of attorney does not change the attorneys-in-fact, it states that the purposes
of the power of attorney include, but are not limited to, the following:
1. To receive and receipt for any and all sums of money, or payments due or to become d ue
to me, to dep osit all in my name by them in my behalf;
2. To act for me in any business in which I am now or may become interested;
3. To endorse or make notes, checks, drafts or bills of exchange which may require my
endorsement or signature, and to deposit as cash or for collection in any bank or savings
institution, or to acquire funds in a like manner;
4. To draw chec ks against my accounts in any bank or savings institution, to make notes for
funds or withdrawals of savings accounts or certificates of deposit with any financial
institution;
5. To accept all drafts or bills of exchange which may be drawn up on me in the usual course
of my business;
6. To receive the dividends which are now due or which may hereafter become due to me
on stock now owned or hereafter acquired in my name;
7. To sell, assign, mortgage, transfer, convey, lease, or set over all or any part of my real or
personal property or estate of whatever nature and wherever situated.
8. To purchase real estate or personal property and to sign my name to all necessary
instruments incidental to this purpose.
9. I hereb y grant an unlimited guard ianship of my person to the atto rneys in fact named
herein, and as a part thereof they or either of them shall have full authority to act on my
behalf in nom inating a d octor for my med ical care, select hospitals and do all other things for
my med ical care and treatme nt, and I direct that they shall have the authority and be required
(continued...)
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again naming Mr. and Ms. Kemp her attorneys-in-fact, dated November 5, 1996, and a new Will
dated January 7, 1997 (the “1997 Will”). The 1997 Will, naming Mr. Kemp the executor, made
various specific bequests, the most significant being bequests of $100,000 to Mr. and Ms. Kemp
each. Finally, in 1999, Aunt Mamie wished to execute another Will. On this occasion, she sought
the legal services of Walton West (“West”) who, after conferring with Aunt Mamie privately about
her intentions, drafted a new Will which Aunt Mamie executed on July 13, 1999 (the “1999 Will”).
The primary differences between the 1997 Will and the 1999 Will are that the specific bequest
amounts for the beneficiaries were modified and the bequests to Mr. and Ms. Kemp were deleted
from the 1999 Will. The reason for the deletion of the bequests to Mr. and Ms. Kemp, as West
testified, resulted from the fact that Aunt Mamie had converted CD’s and bank accounts to joint
accounts with a right of survivorship.
By all accounts, Aunt Mamie remained a strong-willed person who was “tight with money”
until her death. She had heart problems requiring her to see physicians, and she was required to use
a walker while living with Mr. and Ms. Kemp. She died on August 17, 2000.
After Aunt Mamie died, the 1999 Will was submitted to the probate court, and Mr. Kemp
was appointed the executor of Aunt Mamie’s estate. Subsequently, a complaint was filed and later
amended by Sandra Kaye Kemp Parish, Marilyn Coleman Aten, Gary Harlan Coleman, Sr., Jimmie
Austin Kemp, William Buman Argo, Nancy Kemp Petty, Charles S. Aten, Angela Y. Aten, Gary H.
Coleman, Jr., Vicky Coleman-Bird, Thomas A. Kemp, Michael A. Kemp, and David Argo
(collectively the “Appellants”), who are all nieces, nephews, great nieces, or great nephews of
Decedent. After a trial before a jury, the Appellants moved for a directed verdict on the issue that
a confidential relationship per se had been established by the evidence and that the burden of proof,
as a matter of law, should fall to the Appellees to prove the fairness of the transactions for their
benefit. After the trial court denied the Appellants’ motion, the jury returned a verdict in favor of
Appellees, finding that the inter vivos transactions and the execution of the 1999 Will were free of
undue influence and valid. The Appellants filed a motion for partial judgment notwithstanding the
verdict on the issue of which party had the burden of proving the validity or invalidity of the
transactions at issue, and they filed a motion for a new trial raising as error the trial court’s
instructions to the jury and that the jury’s verdict was against the weight of the evidence. After
6
(...continued)
to withho ld medical treatment in the event that there is little prospect for my recovery, and
they shall refuse the authority and affirmatively act to stop any medical treatment that would
keep me alive by extreme means and/or by mechanical or medical techniques that would not
leave me conscious. They shall see that I will have medication to keep me from pain but
otherwise shall not pro long my life by extraord inary medical procedures.
10. These persons nom inated as my power of attorney will authorize the use of any organs
of which I may die possessed useful to any other living person to be used therefore and they
are hereby empowered so to do.
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denying the Appellants’ motions, the Appellants filed a notice of appeal to this Court, seeking review
of the following issues, as we perceive them:
I. Whether the trial court erred when it failed to grant Appellants’ motion for directed
verdict and instruct the jury that Appellees had a confidential relationship with
Decedent as a matter of law creating a presumption of undue influence and requiring
the Appellees to prove by clear and convincing evidence the fairness of the inter
vivos and testamentary transfers for their benefit;
II. Whether the trial court erred when it improperly instructed the jury as to how a power
of attorney could establish a confidential relationship and failed to instruct the jury
that Decedent’s inter vivos and testamentary transfers for the Appellees’ benefit were
presumed invalid because of a confidential relationship;
III. Whether the trial court erred in its jury instruction concerning: (i) the nature and
extent of advice necessary to qualify as “independent advice” for purposes of
rebutting the presumption of undue influence arising from transfers for the benefit
of a dominant party in a confidential relationship; (ii) the need to prove such advice
in order to rebut the presumption; and (iii) the effect of that advice on the
presumption of undue influence; and
IV. Whether there is any material evidence to support the jury’s verdict in favor of the
Appellees.
For the following reasons, we reverse and remand for further proceedings.
Standard of Review
The Tennessee Supreme Court has previously addressed an appellate court’s standard of
review for an order on a motion for directed verdict:
A directed verdict is appropriate in a will contest case only when the evidence
in the case is susceptible to but one conclusion. See Eaton v. McLain, 891 S.W.2d
587, 590 (Tenn. 1994). An appellate court must take the strongest legitimate view
of the evidence favoring the opponent of the motion when called upon to determine
whether a trial court should have granted a directed verdict. Id. Furthermore, all
reasonable inferences in favor of the opponent of the motion must be allowed and all
evidence contrary to the opponent’s position must be disregarded. Id. Ultimately,
an appellate court “may grant the motion only if, after assessing the evidence
according to the foregoing standards, it determines that reasonable minds could not
differ as to the conclusions to be drawn from the evidence.” Id. (citations omitted).
Childress v. Currie, 74 S.W.3d 324, 328 (Tenn. 2002).
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This Court has also addressed the standard of review for appellate courts when examining
jury instructions:
Appellate courts give trial courts leeway with regard to the substance of their
jury instructions in will contest cases. Thomas v. Hamlin, 56 Tenn. App. 13, 37, 404
S.W.2d 569, 579-80 (1964). However, they should prepare their instructions with
care because “will contests are always surrounded with confusion and uncertainty and
fraught with great possibilities of the miscarriage of justice” and because jurors have
a natural tendency to superimpose their judgment on the testator’s. Hager v. Hager,
13 Tenn. App. 23, 27 (1930).
The trial court’s instructions are the jury’s only proper source of the legal
principles to guide its deliberations. State ex rel. Myers v. Brown, 209 Tenn. 141,
148-49, 351 S.W.2d 385, 388 (1961). Accordingly, trial courts should give
substantially accurate instructions concerning the law applicable to the matters at
issue. Street v. Calvert, 541 S.W.2d 576, 584 (Tenn. 1976). The instructions need
not be perfect in every detail, Davis v. Wilson, 522 S.W.2d 872, 884 (Tenn. Ct. App.
1974), as long as they are, as a whole, correct. In re Elam’s Estate, 738 S.W.2d 169,
176 (Tenn. 1987).
Mitchell v. Smith, 779 S.W.2d 384, 390 (Tenn. Ct. App. 1989).
Finally, we are mindful that “[f]indings of fact by a jury in civil actions shall be set aside only
if there is no material evidence to support the verdict.” Tenn. R. App. P. 13(d) (2004).
Directed Verdict on Confidential Relationship
First, Appellants argue that the trial court erred when it failed (1) to grant their motion for
directed verdict on the issue of the existence of a confidential relationship between Decedent and
Appellees and (2) instruct the jury that the presumption of undue influence arose requiring the
Appellees to prove the fairness of the transactions at issue by clear and convincing evidence.
“Under Tennessee law, as in most jurisdictions, a presumption of undue influence arises
where the dominant party in a confidential relationship receives a benefit from the other party.” In
re Estate of Hamilton, 67 S.W.3d 786, 793 (Tenn. Ct. App. 2001) (citing Matlock v. Simpson, 902
S.W.2d 384, 386 (Tenn. 1995); Crain v. Brown, 823 S.W.2d 187, 194 (Tenn. Ct. App. 1991)). “[A]
confidential relationship arises as a matter of law when an unrestricted power of attorney is granted
to the dominant party.” Childress, 74 S.W.3d at 328-29 (citing Matlock, 902 S.W.2d at 386); see
also In re Estate of Hamilton, 67 S.W.3d at 793; Mitchell, 779 S.W.2d at 389 (“A person authorized
to act on behalf of another by virtue of an unrestricted power of attorney has a confidential
relationship with the person who executed the power of attorney.”). No confidential relationship
arises when an unrestricted power of attorney is executed but has not yet been exercised. Childress,
74 S.W.3d at 329. A power of attorney is restricted and a confidential relationship does not exist
as a matter of law when the power of attorney never came into effect and the person granting the
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power of attorney may alter or revoke it at any time. McKinley v. Holt, No. 03A01-9807-PB-00220,
1999 Tenn. App. LEXIS 247, at *12 (Tenn. Ct. App. Apr. 15, 1999); see also Smith v. Smith, 102
S.W.3d 648, 653 (Tenn. Ct. App. 2002).
Once a presumption of undue influence arises, in order to overcome the presumption, the
dominant party must establish that the transaction at issue was fair by clear and convincing evidence.
In re Estate of Hamilton, 67 S.W.3d at 793. With a will contest, evidence that the testator received
independent, legal advice concerning the contents of a will may rebut this presumption. Id. (citing
Crain, 823 S.W.2d at 194). Finally, we are mindful that “the presumption of undue influence
extends to all dealings between persons in fiduciary and confidential relations, and embraces gifts,
contracts, sales, releases, mortgages and other transactions by which the dominant party obtains a
benefit from the other party.” Gordon v. Thornton, 584 S.W.2d 655, 658 (Tenn. Ct. App. 1979)
(citing Williams v. Jones, 388 S.W.2d 665 (Tenn. Ct. App. 1963); Roberts v. Chase, 166 S.W.2d 641
(Tenn. Ct. App. 1942)).
The trial court denied the Appellants’ motion for directed verdict on the issue of whether a
confidential relationship was established such that the burden would shift to the Appellees to show
the fairness of the transaction. We disagree. In this case, it is undisputed that the Appellees were
Decedent’s attorneys-in-fact from August 1996 until her death in August 2000. It is also undisputed
that the two powers of attorney naming the Appellees Decedent’s attorneys-in-fact were in effect
upon execution. Further, there is no dispute that the Appellees exercised their authority under the
powers of attorney.7 Finally, there is no question that the change of ownership of the bank accounts
and certificates of deposit from Decedent’s sole ownership to joint ownership with the Appellees
giving them a right of survivorship benefitted the Appellees.
The Appellees argue that the denial of the Appellants’ motion for directed verdict was proper
because the power of attorney was “restricted” since the Appellees were prohibited from “changing
the ownership status of any property.” The Appellees further argue that denial of Appellants’ motion
for directed verdict was proper because they did not exercise the power of attorney to change the
ownership status of Decedent’s CD’s or bank accounts, and, therefore, in accordance with Childress
v. Currie, 74 S.W.3d 324 (Tenn. 2002), no confidential relationship existed because they did not
exercise any power of attorney to change the ownership status of the CD’s or bank accounts. We
disagree.
First, as support for the argument that the power of attorney in effect in this case was
“restricted” because the Appellees did not have the power to change the ownership status of any of
7
In Ms. Kemp’s deposition testimony which was read into the record, she admits that she signed the
documents to rene w the CD’s as Deced ent’s attorney-in-fact. Ms. Kem p also admitted in her trial testimony that she
signed renewal documents for Decedent’s CD’s pursuant to her authority under the power of attorney. Additionally, Mr.
Kemp signed documents as Decedent’s attorney-in-fact. One such example includes a disclosure statement for a CD with
Citizens Bank & T rust dated March 23, 200 0. Such statement names M r. and Ms. Kem p joint owners with Decedent
and grants them a right of survivorship. Mr. Kemp confirmed that he signed this document as Decedent’s attorney-in-fact
in his trial testimony.
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Decedent’s property, the Appellees cite this Court’s decision of In re Estate of Coggins, No. 03A01-
9604-PB-00131, 1996 WL 571510 (Tenn. Ct. App. Oct. 3, 1996). However, that case did not
address the question of whether the absence of a power of changing a principal’s ownership status
of property creates a “restricted” power of attorney for purposes of establishing a confidential
relationship. Rather, in that case, this Court addressed the issue of whether an attorney-in-fact held
the authority under a power of attorney to change the ownership status of the principal’s property to
joint ownership with the attorney-in-fact. In re Estate of Coggins, 1996 WL 571510, at *1. After
our review of Tennessee jurisprudence, we cannot say that the power of attorney in this case is
“restricted,” and therefore that the presumption of undue influence does not arise when the attorney-
in-fact lacks a power to change the ownership status of the principal’s property.
Second, the Appellees argue that because they did not use their authority under the power of
attorney to convert Decedent’s property to joint ownership, the power of attorney was not exercised
to create a confidential relationship in accordance with the Tennessee Supreme Court’s decision in
Childress v. Currie, 74 S.W.3d 324 (Tenn. 2002). However, in Childress v. Currie, the court did
not hold, as the Appellees contend, that a power of attorney that is executed and exercised, but not
exercised to convert assets to joint ownership, does not create a confidential relationship such that
the presumption of undue influence arises. Childress, 74 S.W.3d at 329. Rather, the court held that
“[w]hen an unrestricted power of attorney is executed but has not yet been exercised, good sense
dictates that there exists no dominion and control and therefore no confidential relationship based
solely on the existence of the power of attorney.” Id. Unlike the case at bar, the Tennessee Supreme
Court in Childress v. Currie addressed a situation where a power of attorney had been executed but
never exercised. Id. at 325. In this case, it is undisputed that the Appellees exercised the power of
attorney.
The Appellees further argue that relationships between family members do not establish a
confidential relationship per se. It is true that the relationships between family members and
relatives are not by themselves confidential relationships. Mitchell v. Smith, 779 S.W.2d 384, 389
(Tenn. Ct. App. 1989) (citing Halle v. Summerfield, 287 S.W.2d 57, 61 (Tenn. 1956); Harper v.
Watkins, 670 S.W.2d 611, 628 (Tenn. Ct. App. 1983)). However, the Appellants in this case do not
rely on the familial relationship between the Appellees and Decedent to establish a confidential
relationship per se. Rather, the Appellants rely on the rule that an executed, unrestricted power of
attorney establishes a confidential relationship per se. Therefore, such rule is inapplicable to this
case, and this argument has no merit. Though it is rare for a court to grant a plaintiff’s motion for
directed verdict, we believe that the trial court should have granted the Appellants’ motion in this
case given the undisputed facts. However, the error created by the trial court’s failure could have
been cured by a proper jury instruction. Therefore, we now examine the instructions given to the
jury by the trial court to determine if such instructions constitute reversible error.
Jury Instructions on the Presumption of Undue Influence
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The Appellants argue that the trial court aggravated the error of denying their motion for
directed verdict by misinforming the jury about how a power of attorney can create a confidential
relationship per se, such that the presumption of undue influence is raised and the burden is shifted
to the Appellees to prove the fairness of the transactions at issue by clear and convincing evidence.
As an initial matter, we note that
[w]hen the alleged error concerns a jury instruction actually given to the jury, there
is no requirement that the appropriate instruction be provided to the trial court. In
fact, there is no duty to object to the instruction at trial (although the better practice
certainly would be to point out any problem to the trial court).
In re Estate of Calfee, No. E-2000-01720-COA-R3-CV, 2001 Tenn. App. LEXIS 404, at *9 (Tenn.
Ct. App. May 31, 2001) (citing Grandstaff v. Hawks, 36 S.W.3d 482, 489 (Tenn. Ct. App. 2000)).
There is no requirement that a motion for new trial be filed stating the specific objectionable
material. Id. Though not required, the Appellants set forth their objections to the trial court’s jury
instructions in their motion for a new trial. Additionally, for this Court to review the propriety of
a trial court’s instructions to a jury, such instructions must be made a part of the record. In re Estate
of Elam, No. 85-15-II, 1985 Tenn. App. LEXIS 3283, at *8-9 (Tenn. Ct. App. Nov. 27, 1985). In
the present case, such instructions were included in the record on appeal.
In this case, the jury instruction at issue is Jury Instruction No. 29 in which the trial court
instructed the jury as follows:
An unrestricted power of attorney, in and of itself, creates a confidential
relationship between the parties.
An unrestricted power of attorney, however, does not, in and of itself, create
a confidential relationship between the parties if the attorney in fact did not exercise
the power or was not aware of the power.
A general clause in a power of attorney given for a specific purpose,
authorizing the agent to do “any and every act” in the principal’s name which he
could do in person, must be construed to relate to the specific purpose, and does not
constitute such agent a general agent. In re estate of Coggins (Ct. App. 1996)
Tennessee law as found in T.C.A. 34-6-108(c) provides:
(c) Nothing contained in this section and “34-6-109 shall be construed to vest an
attorney in fact with, or authorize an attorney in fact to exercise, any of the following
powers:
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(1) Make gifts, grants, or other transfers without consideration, except in fulfillment
of charitable pledges made by the principal while competent;
(2) Exercise any powers of revocation, amendment, or appointment which the
principal may have over the income or principal of any trust;
(3) Act on behalf of the principal in connection with any fiduciary position held by
the principal, except to renounce or resign such position;
(4) Exercise any incidents of ownership on any life insurance policies owned by the
principal on the life of the attorney in fact;
(5) Change beneficiary designations on any death benefits payable on account of the
death of the principal from any life insurance policy, employee benefit plan, or
individual retirement account;
(6) Change, add or delete any right of survivorship designation on any property, real
or personal, to which the principal holds title, alone or with others;
(7) Renounce or disclaim any property or interest in property or powers to which the
principal may become entitled, whether by gift or testate or intestate succession;
(8) Exercise any right, or refuse, release or abandon any right, to claim an elective
share in any estate or under any will; or
(9) Make any decisions regarding medical treatments or health care, except as
incidental to decisions regarding property and finances.
In the case before you, if you find that the power of attorney granted by
Mamie Fesmire to Jerry Kemp and Annie Jo Kemp does Not include any or all of the
above provisions, then the power of attorney is restricted and is not an unrestricted
power of attorney. Therefore, the presumption of undue influence would not arise.
As it relates to power of attorney, the presumption of undue influence arises only
when the power of attorney is an unrestricted power of attorney.
(emphasis added).
Our review of Tennessee case law reveals no requirement that a power of attorney must
include “any or all” of the provisions listed in Tenn. Code Ann. § 34-6-108(c) (2001) in order to be
“unrestricted” for purposes of creating a confidential relationship and raising the presumption of
undue influence. Therefore, we conclude the trial court committed reversible error by providing the
jury with a checklist of powers needed to create an “unrestricted” power of attorney and a
confidential relationship. It follows that, because the jury was misled as to how a confidential
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relationship can be created by a power of attorney, the presumption of undue influence could not
have been raised, causing the burden to shift to the Appellees to prove the fairness of the transactions
by clear and convincing evidence. For these reasons, we reverse the trial court’s denial of the
Appellants’ motion for a new trial and remand for a new trial. As a result of our disposition on this
issue, the Appellants final two issues are pretermitted.
Conclusion
For the reasons stated above, we reverse and remand this case for further proceedings
consistent with this opinion. Costs of this appeal are taxed to the Appellees, Jerry Donald Kemp and
Annie Jo Kemp, for which execution may issue if necessary.
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ALAN E. HIGHERS, JUDGE
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