This Court has recognized that "[i]nvalidating a will because of undue influence is generally not a simple undertaking." Kelley v. Johns, 96 S.W.3d 189, 195 (Tenn.Ct.App. 2002). Undue influence can be proven by either direct or circumstantial evidence.
The second category consists of relationships that are not per se fiduciary in nature, but arise in situations where one party exercised "dominion and control over another." Kelley v.Johns, 96 S.W.3d 189, 197 (Tenn.Ct.App. 2002); Matlock v. Simpson, 902 S.W.2d 384, 385-86 (Tenn. 1995); Kelly v. Allen, 558 S.W.2d at 848.
Because direct evidence of undue influence is rare, the contestants in most cases must establish undue influence by proving the existence of suspicious circumstances that support a conclusion that the will's execution was not the product of the testator's free and independent act. Kelley v. Johns , 96 S.W.3d 189, 195 (Tenn. Ct. App. 2002). The suspicious circumstances most frequently relied on in will contests are (1) a confidential relationship between the testator and the beneficiary, (2) the testator's poor physical or mental health, and (3) the beneficiary's involvement in the procurement of the will.Id. at 196.
A confidential relationship "is not merely a relationship of mutual trust and confidence . . . ." Kelley v. Johns, 96 S.W.3d 189, 197 (Tenn. Ct. App. 2002). Rather, a confidential relationship is "one 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."
Halle v. Summerfield, 199 Tenn. 445, 287 S.W.2d 57, 61 (1956). "Thus in most cases, contestants establish undue influence by proving the existence of suspicious circumstances warranting the conclusion that the will was not the testator's free and independent act". Kelley v. Johns, 96 S.W.3d 189, 195 (Tenn.Ct.App. 2002). Generally, there is no prescribed type or number of suspicious circumstances necessary to invalidate a will.
A relationship which is not fiduciary per se may become a fiduciary relationship where one party has exercised "'dominion and control over another.'" Id. (quoting Kelley v. Johns, 96 S.W.3d 189, 197 (Tenn. Ct. App. 2002)). "This relationship, often called a 'confidential relationship,' 'is not merely a relationship of mutual trust and confidence, but rather it is one '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.'"
Relationships not fiduciary in nature, even those that are inherently confidential, such as those between family members, are not confidential per se and require proof of the elements of dominion and control in order to establish the existence of a confidential relationship. Kelley v. Johns, 96 S.W.3d 189, 197-98 (Tenn. Ct. App. 2002) (other internal citations omitted).
Finally, Appellant asserts that the trial court erred in finding that the will at issue was not the product of undue influence by Beneficiary. It is well-settled that the contestant in a will contest has the burden of proof. Kelley v. Johns, 96 S.W.3d 189, 196 (Tenn. Ct. App. 2002) (citing In re Elam, 738 S.W.2d at 171; Bills v. Lindsay, 909 S.W.2d 434, 438 (Tenn. Ct. App. 1993)). However, "[w]hen two parties enter into either a confidential or fiduciary relationship and the dominant party receives a gift or other benefit from the other party[,] a presumption arises that some improper advantage was taken."
As a general rule, it is presumed that undue influence does not enter into the making of a will and the burden of proving undue influence falls upon the person contesting the will. Kelley v. Johns, 96 S.W.3d 189, 196 (Tenn. Ct. App. 2002) ; In re Estate of Maddox, 60 S.W.3d 84, 88–89 (Tenn. Ct. App. 2001). Undue influence "upon a testator consists of substituting the will of the person exercising it for that of the testator."
In general terms, it is any relationship that gives one person the ability to exercise dominion and control over another. Kelley v. Johns, 96 S.W.3d 189, 197 (Tenn. Ct. App. 2002). "The burden of proof regarding a confidential relationship rests upon the party claiming the existence of such a relationship."