Estate of Elam, In re

• Decision Date: 26 May 1987
• Citation: 738 S.W.2d 169
• Parties: In re ESTATE OF James B. ELAM. Vincent ELAM, Contestant/Appellee, v. Edwin A. OAKLEY, Evelyn Griffin and Claudia Griffin, Proponents/Appellants. 738 S.W.2d 169
• Court: Tennessee Supreme Court

Page 169

738 S.W.2d 169

In re ESTATE OF James B. ELAM.

Vincent ELAM, Contestant/Appellee, v. Edwin A. OAKLEY, Evelyn Griffin and Claudia Griffin,

Proponents/Appellants.

738 S.W.2d 169

Supreme Court of Tennessee,

at Nashville.

May 26, 1987.

Clark H. Tidwell, Taylor, Schlater, Lassiter, Tidwell & Trentham, Nashville, for proponents/appellants.

Sandra Jones, Vance Cramb, Jr., Nashville, for contestant/appellee.

OPINION

BROCK, Chief Justice.

We granted the rule 11 application in this case, a will contest, to address the adequacy of jury instructions as well as whether there was material evidence to support the jury verdict.

The testator, Mr. James Elam, executed three wills within the four months preceding his February 4, 1982, death at the age of seventy-nine. On October 27, 1981, he executed a will naming Mr. Milton Griffin, his foster son, as the primary beneficiary. He subsequently named his brother, Mr. Vincent Elam (the contestant) and his family as primary beneficiaries in a will executed November 9, 1981. Finally, on January 4, 1982, he executed a third will leaving the bulk of his estate to the wife and daughter of Milton Griffin (the proponents).

The January 4 will was filed in probate court. Vincent Elam contested the will on grounds of undue influence and lack of testamentary capacity and the matter was certified to circuit court for trial. In the first trial, the jury returned a verdict for the proponents of the January 4 will, but in an unreported decision, the Court of Appeals reversed because of an omission in the trial judge's instructions. At the new trial, the jury again found for the proponents of the January 4 will. On appeal the Court of Appeals reversed and remanded for a new trial, holding that certain of the instructions were erroneous. We respectfully disagree and reinstate the jury verdict.

I.

The following facts are pertinent to the issues presented for review. On October 21, 1981, the testator's wife of 57 years died unexpectedly. The couple had had no natural children, but they had taken into their home a foster son, Milton Griffin, at the age of 12. He remained in their home until his marriage, seven years later, in 1948. Since that time, Griffin and his family had lived close by and foster father and son had enjoyed a good relationship. At the time of Mr. Elam's death, the Griffins lived on the same street as his foster father, separated by one house.

The death of his wife shook the testator, and he wanted to be relieved from the responsibility of taking care of his personal business. At this time, he also suffered from an undiagnosed malady in his leg, causing him to limp and making it difficult for him to drive. For these reasons, he executed a power of attorney in favor of Griffin, enabling the latter to take care of his personal business. The testator also executed the October 27 will at this time.

The testator had a drinking problem, which became more serious after the death of his wife. Milton Griffin became concerned about his foster father driving while intoxicated. Pursuant to the power of attorney and without discussing the matter with his foster father, he sold the latter's automobile. This action did not please the testator and on November 9, 1981, he revoked the power of attorney. The two men did not communicate again until November 30, when Griffin went to the testator's house at the request of the latter to help him fill out some Medicare papers. They had a pleasant conversation, but relations remained strained.

There was evidence that the testator and his brother had been estranged for a number of years. After the revocation of the power of attorney, Vincent Elam and his wife visited the testator for a couple of days. They came and went from the testator's house throughout the month of December, staying all of the first two weeks. On December 9, the testator executed a new will which primarily benefitted Vincent Elam and his family. During this period, the testator also purchased another car.

Ill-will had developed by this time between Griffin and Vincent Elam. As a result, Griffin stayed away from the testator's house during December, although he talked to him by telephone.

On January 1, 1982, the testator telephoned his foster son requesting him to make a doctor's appointment to check his leg which was hurting him. He also said that he wanted to make a will.

The next day, a Saturday, Griffin went to the testator's house. His foster father's leg appeared to be in bad shape and Griffin agreed to make a doctor's appointment for the following Monday. The testator brought up the subject of the will. Although Griffin knew of the October will, he was unaware of the December 9 will and remained so until after the testator's death. He did not question his father, however, but took notes as to his father's wishes. Mr. Griffin did not suggest to the testator how to dispose of his property, but he did suggest the name of an attorney, Mr. Bob Young, to draft the will and to serve as its executor. Mr. Young was a neighbor who had known both the testator and Mr. Griffin for several years. Griffin took the notes to Young who prepared the will based on the notes given him.

On Monday, Griffin drove the testator to the doctor's office. The doctor determined that the testator had a severe case of phlebitis and wanted him hospitalized that day. Before going to the hospital, the testator insisted, against Griffin's advice, on executing the new will. Mr. Griffin drove his foster father to the attorney's office where the January 4 will was executed. He then was hospitalized and died a month later.

II.

The contestant argues that the trial judge should have directed a verdict in his favor either because the testator lacked testamentary capacity when he executed the January 4 will, or because Milton Griffin procured the will through undue influence. The proponents of the January 4 will established its due and formal execution. The contestant, therefore, had the burden of proving lack of testamentary capacity or undue influence. In re Estate of Rhodes, 222 Tenn. 394, 436 S.W.2d 429, 435-36 (1968).

We discuss both issues bearing in mind the following:

It is the long established rule in this State that in reviewing a judgment based upon a jury verdict the appellate courts are not at liberty to weigh the evidence to decide where the preponderance lies, but are limited to determining whether there is material evidence to support the verdict; the appellate court is required to take the strongest legitimate view of all of the evidence in favor of the verdict, to assume the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and to discard all to the contrary. Having thus examined the record, if there be any material evidence to support the verdict, it must be affirmed ...

Electric Power Board v. St. Joseph Valley Struct., 691 S.W.2d 522, 526 (Tenn.1985).

TESTAMENTARY CAPACITY

The law requires that the testator's mind, at the time the will is executed, must be sufficiently sound to enable him or her to know and understand the force and consequence of the act of making the will. American Trust & Banking Co. v. Williams, 32 Tenn.App. 592, 225 S.W.2d 79, 83 (1948). The testator must have an intelligent consciousness of the nature and effect of the act, a knowledge of the property possessed and an understanding of the disposition to be made. Goodall v. Crawford, 611 S.W.2d 602, 604 (Tenn.App.1981). While evidence regarding factors such as physical weakness or disease, old age, blunt perception or failing mind and memory is admissible on the issue of testamentary capacity, it is not conclusive and the testator is not thereby rendered incompetent if her mind is sufficiently sound to enable her to know and understand what she is doing. American Trust, supra; 79 Am.Jur.2d Wills Sec. 77 (1975).

The opinions of lay witnesses are admissible on soundness of mind if they are based on details of conversations, appearances, conduct or other particular facts from which the state of mind may be judged. American Trust, supra, 225 S.W.2d at 84. Further,

[i]n determining testamentary capacity, the mental condition of the testator at the very time of executing the will is the only point of inquiry; but evidence of mental condition both before and after making the will, if not too remote in point of time, may be received as bearing upon that question.

Insofar as it has a reasonable tendency to bear upon the mental capacity of the testator when the will was executed, evidence of his physical condition both before and after the date of the will is also admissible. But, apart from its effect upon the mind, the physical condition of the testator has no bearing on the issue ...

Id., quoted in Taliaferro v. Green, 622 S.W.2d 829, 834 (Tenn.App.1981).

The proponents offered several witnesses who testified to the soundness of the testator's mind. Bob Young, the attorney who drafted the will, had known the testator for several years and had often visited with him. On January 4, 1982, the testator acted no differently than in their earlier visits. Although he was in physical pain, he appeared mentally alert and sober. He and Mr. Young engaged in small talk. The testator told Mr. Young that the doctor was putting him in the hospital. He exhibited an understanding of the business at hand. For instance, he told Young not only that he intended to leave his automobile to his wife's brother, Mr. Edwin Oakley, but gave as his reason, that his wife had asked him to remember her side of the family. While proof of the reason for making a disposition is not necessary, it is nevertheless relevant to show the testator knew the force and consequences of his act.

Mr. Lloyd Smith, a Baptist minister, testified that he had known the testator since 1955 in connection with church activities. They had a close relationship. Although he was not pastor of the testator's...