In Re Estate of John Faye Scott

11/06/2026 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE September 1, 2026 Session IN RE ESTATE OF JOHN FAYE SCOTT1 Appeal from the Probate Court for Wilson County No. 2023-PR-141 A. Ensley Hagan, Jr., Judge No. M2025-01590-COA-R3-CV This appeal arises from a will contest involving the estate of John Faye Scott (“Decedent”). Shortly after his death, one of Decedent’s children, Jon Ryan Scott (“Appellant”), petitioned to probate Decedent’s October 28, 2013 will. Eleven days later, Decedent’s widow, Mary Katherine Robinson-Scott (hereinafter “Kathy Scott” or “Appellee”), petitioned to probate Decedent’s September 10, 2021 will. The Wilson County Probate Court admitted the 2021 will to probate. Appellant then filed a petition to contest the 2021 will based on testamentary capacity, duress, and undue influence. Appellee opposed the petition, contending the 2021 will was valid. Following discovery, Appellee moved for summary judgment on the issues raised by Appellant. Finding the material facts were not disputed, the court ruled that Appellee was entitled to summary judgment because Decedent had the requisite testamentary capacity at the time the will was executed and that there was no proof to support the claims of undue influence and duress. Thus, the court summarily dismissed the will contest. This appeal followed. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed FRANK G. CLEMENT, JR., C.J., delivered the opinion of the Court, in which ANDY D. BENNETT and JEFFREY USMAN, JJ., joined. B. Nathan Hunt and Marti N. Gibson, Clarksville, Tennessee, for the appellant, Jon Ryan Scott. Cathryn Armistead and Leah Harms, Lebanon, Tennessee, for the appellees, Estate of John F. Scott and Estate of Mary Katherine Robinson-Scott. 1 The decedent’s middle name also appears as Fay throughout the record.  OPINION FACTS AND PROCEDURAL HISTORY Decedent died on January 15, 2023, at the age of 72. He was survived by Appellee, his wife of ten years, and three adult children from prior marriages: Appellant, Michael Chad Scott, and Amy DeBerry (“Ms. DeBerry”). On October 28, 2013, approximately four months before marrying Appellee, Decedent executed a will and financial and healthcare powers of attorney (“POA”) naming Appellant as his executor and attorney-in-fact, with Ms. DeBerry as the successor, and bequeathing his estate to his three children in equal shares. Thereafter, Decedent began experiencing a decline in his memory and cognition. In 2018, neurocognitive testing revealed that Decedent had an IQ score of 57 and a diagnosis of “level 6 – severe cognitive decline.” That year, Decedent changed his power of attorney documents to name his wife, Kathy Scott, as his attorney-in-fact. In 2020, Roswtha Ann Bose, Decedent’s ex-wife and mother of Appellant and Michael Scott, filed a contempt petition alleging Decedent failed to comply with spousal support obligations under their divorce decree. Attorney Kayla Costley (“Ms. Costley”) represented Decedent in the dispute with his ex-wife. The matter was settled pursuant to an agreed order in August 2021. While at Ms. Costley’s law office to settle the lawsuit initiated by his ex-wife, Decedent requested a meeting with Ms. Costley for estate planning purposes. An appointment was made for August 27, 2021. As scheduled, Decedent met with Ms. Costley on August 27, 2021, to discuss his estate plan, with only Decedent, Ms. Costley, and her paralegal in attendance. After receiving legal advice from Ms. Costley, they agreed upon an estate plan and scheduled September 10, 2021, for executing the will and powers of attorney. On September 10, 2021, Decedent went to Ms. Costley’s office where he executed a new will and two powers of attorney nominating Appellee as the personal representative of his estate and naming her as his healthcare agent and attorney-in-fact, with her daughter as the successor fiduciary in each of the documents. The will left Decedent’s entire estate to Kathy Scott, except for an insurance policy that was evenly split between his three children after funeral expenses were paid. In the interim, Decedent’s condition was documented in his Veteran’s Administration (“VA”) medical records as of August 2021, stating as follows: Mr. Scott gave permission for his wife to be present during the encounter. Reported ex-wife wanted backpay for spousal support, and they needed documentation of neurocognitive disorder to help with legal process. The -2-  issue is now settled. Pt oriented to self, place and situation but not time. Stated the year was 1969. Pt denied any concerns today. His wife reported he continues to be irritable and have a decline in memory, word-finding difficulty and is much slower to comprehend/process things he says. He is additionally hearing impaired and refuses to wear hearing aids. He was not wearing aids today, and appeared perplexed/frustrated when he could not hear me or his wife. The notes further state that Decedent was able to complete his Accomplishments of Daily Living (“ADLs”), like bathing and feeding himself. However, Decedent was not able to accomplish any iADLS, which are more complex life skills, with the exception of using his phone. Decedent was otherwise completely dependent on his wife. A social worker’s triage assessment dated September 1, 2021, noted that Kathy Scott inquired about long-term care placement and stated that Decedent’s “dementia is progressing faster than they had expected.” The notes from Decedent’s visit to the VA on October 13, 2021, one month after the new will was executed, state that, “[Decedent] is having difficulty walking down steps. His wife has noticed increased confusion and decreased orientation: has a hard time recognizing surroundings at home.” On July 18, 2022, Decedent was admitted to a rehabilitation center in Lebanon, Tennessee. Staff informed Appellant that Decedent needed to be placed in a memory care unit approximately one week later. Decedent entered a memory care unit in August 2022. Around this time, the relationship between Appellant and Appellee deteriorated significantly. Decedent died on January 15, 2023, while residing at the nursing home. On March 20, 2023, Appellant petitioned the Wilson County Probate Court to probate the 2013 will. On March 31, 2023, Appellee filed an intervening petition, seeking to probate the 2021 will. In April 2023, the court entered an order admitting the 2021 will to probate and appointing Appellee as executrix. Appellant filed this will contest, and the court sustained the Appellant’s right to contest the probate of the 2021 will. On April 9, 2025, Appellee moved for summary judgment in the will contest on all three issues raised by Appellant. The motion was granted pursuant to an order entered on -3- August 26, 2025. After finding that the material facts were not disputed,2 the court made numerous findings that established the timeline of events and described how the Decedent’s 2021 will was initiated, drafted, and signed. Importantly, the findings conclude that “Decedent received independent legal advice” about his 2021 will, that his attorney was certain of his testamentary capacity during the estate planning meeting and when he signed the will, and that the will was executed in his attorney’s office with only the Decedent, his counsel, and a paralegal present. The court also referenced a mental status exam Decedent underwent about a month after the will’s execution, which “indicated that Decedent had adequate judgement, appropriate fund [sic] of knowledge, intact language, and was oriented as to person, place and time.” The findings further establish that Appellant did not see the Decedent on the day he executed the 2021 will and that Appellant trusted Appellee to care for the Decedent. Finally, describing Appellant’s allegations regarding duress, Appellant “only stated his father was in poor health and incapable of completing his ADLs.” Regarding Appellant’s arguments about undue influence, Appellant only “could see a scenario” where Decedent was coerced but provided no evidence. In its order, the court reasoned as follows: In finding that the facts are undisputed material facts, the Court recognized that objections were made by Plaintiff to several of the material facts, but that objections alone with no cite to the record are insufficient under Rule 56.03, and that as such the Court is satisfied that all 54 facts presented by Defendant Katherine Robinson-Scott are undisputed material facts. Indeed, the Court finds the Will Contestant, Jon Ryan Scott, simply has no evidence that his father lacked testamentary capacity, was under duress, or was unduly influenced in executing his will in September of 2021. The Court further finds that Testator was examined a couple of weeks before (August 25, 2021) and a few weeks after (October 13, 2021) he executed these documents on September 10, 2021; and medical professionals determined he had adequate judgment, knew who he was and was oriented as to person, time and place. The Contestant admitted at his deposition that his father “knew exactly who everybody” was until and at the time of his passing. While Testator was diagnosed with dementia, only a period of lucidity is required to execute a will in Tennessee, and his attorney believed 2 Appellee’s motion for summary judgment was supported by 54 separately stated undisputed facts consistent with the requirements of Tennessee Rule of Civil Procedure 56.03. Appellant only “denied” five of the factual statements and he failed to cite to the record “demonstrating that the fact is disputed” as Rule 56.03 requires. Thus, the material facts Appellee relied upon were undisputed. See Owens v. Bristol Motor Speedway, Inc., 77 S.W.3d 771, 774–75 (Tenn. Ct. App. 2001). -4-  he had the requisite capacity to sign his will or she would not have allowed him to sign it. The Court finds that Contestant has failed to provide any evidence that Testator was in any way under duress. The proof demonstrates that Testator initiated the estate planning appointment himself; attended the appointment himself; discussed his desires for how his estate would be distributed upon his death himself; and ultimately signed the will in question himself along with the powers of attorney. The Court further finds that Decedent had independent legal advice with regard to the will, working directly with his attorney Kayla Costley who was highly experienced with clients in discussing, preparing and executing estate planning documents both as paralegal and a lawyer. There simply is no evidence that Testator was under anyone’s influence or was being coerced to change his will. Based on the above and other findings, the court concluded that Appellee was entitled to judgment as a matter of law on all three issues and summarily dismissed the will contest. On August 29, 2025, Appellant moved to set aside the order granting summary judgment. The court heard the motion in September 2025 and denied it in October 2025. Appellant filed a timely appeal on October 9, 2025.3 ISSUES Appellant presents the following issues for review: 1. Whether the trial court erred in finding that there was not a genuine issue of a material fact regarding whether Decedent had capacity to execute the will in question. 2. Whether the trial court erred in finding that there was not a genuine issue of a material fact regarding whether Decedent was under duress or undue influence when he executed the will in question. 3. Whether the trial court’s order granting summary judgment failed to reflect the court’s independent judgment. 3 Appellee died on October 28, 2025, shortly after the notice of appeal was filed. Her estate was opened in December 2025 and the personal representative of her estate, her daughter, was substituted in her place as a party to this appeal. -5-  Appellees present the following issues for review: 1. Whether there were any genuine issues of material fact in dispute because of Appellant’s failure to comply with Tennessee Rules of Civil Procedure, Rule 56. 2. Whether the trial court correctly found there was no genuine issue of material fact that decedent lacked capacity to execute the will in question. 3. Whether the trial court correctly found there was no genuine issue of material fact that Decedent was under duress or unduly influenced when he executed the will in question. 4. Whether the trial court made its own independent findings of fact and conclusions of law before requesting that counsel prepare an order reflecting the same. 5. Whether Appellant’s appeal is frivolous and whether Appellee’s attorney fees should be awarded as just compensation. STANDARD OF REVIEW A trial court’s decision to grant or deny a motion for summary judgment is a matter of law. Therefore, our review is de novo. Mott v. Luethke, 633 S.W.3d 585, 589 (Tenn. Ct. App. 2021). See Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013). Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. Accordingly, “we make a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.” Rye, 477 S.W.3d at 250. We must take the strongest view of the evidence in favor of the nonmoving party, allowing all reasonable inferences in its favor. Perkins v. Metro. Gov’t of Nashville, 380 S.W.3d 73, 80 (Tenn. 2012). “If the undisputed facts support only one conclusion and that conclusion entitles the moving party to a judgment, then the trial court’s grant of summary judgment is affirmed.” In re Estate of Wilson, No. W2023- 00313-COA-R3-CV, 2024 WL 322679, at *6 (Tenn. Ct. App. Jan. 29, 2024) (quoting In re Est. of Cone, 652 S.W.3d 822, 826 (Tenn. Ct. App. 2022)). ANALYSIS I. PREPARATION OF THE FINAL ORDER -6-  Appellant contends that the final order adjudicating this matter did not reflect the court’s independent judgment. He questions the fact that the trial court’s initial ruling, set forth in an email to counsel, consisted of two pages, while the proposed order submitted by Appellee consisted of eight pages. Appellee insists the final order reflects the trial court’s independent judgment. Both parties cite Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303 (Tenn. 2014) in support of their position. In Lakeside, our Supreme Court discussed the common practice of counsel preparing orders for entry by the trial court. The Court did not prohibit the practice but found that two conditions must be satisfied for such an order to be proper. Id. at 315–16. First, the findings of facts and conclusions of law must be accurate regarding the trial court’s decision. Id. Second, the order must not leave any doubt as to whether the ruling represented the trial court’s own deliberations and decision. Id. Having reviewed the email and final order, we conclude that the order, though more detailed than the court’s ruling as summarized in the email to counsel, is consistent with the court’s email to the parties, which set forth the court’s independent reasoning and rulings on all three issues. The email reads in pertinent part: The Court has now reviewed all of the material submitted in support of and in opposition to the pending Motion for Summary Judgment. The Will Contestant, Jon Ryan Scott, simply has no evidence that his father lacked testamentary capacity, was under duress, or was unduly influenced in executing his will in September of 2021. CAPACITY: Here the decedent, Mr. Scott, had estate planning documents, including a will, and health and financial powers of attorney prepared in 2013, which named his son as his executor and attorney in fact. The Decedent married his now widow after the 2013 estate planning documents. He decided to change those estate planning documents some eight years later in September 2021, and name his new wife as his executor and attorney in fact for healthcare and finances. This change followed litigation between Decedent and his ex-wife who was the mother of his children. Decedent believed that his children had sided with his ex-wife in this litigation and this prompted him to change his estate planning documents. Testator was examined a couple of weeks before (August 25, 2021) and a few weeks after (October 13, 2021) he executed these documents on September 10, 2021; and medical professionals determined he had adequate judgment, knew who he was and was oriented as to person, time and place. The Contestant admitted at his deposition that his father “knew exactly who everybody” was until and at the time of his passing. While Testator was diagnosed with dementia, only a period of lucidity is required to execute a will in Tennessee, and his attorney -7-  believed he had the requisite capacity to sign his will or she would not have allowed him to sign it. DURESS/UNDUE INFLUENCE: Contestant has failed to provide any evidence that Testator was in any way under duress. The proof demonstrates that Testator initiated the estate planning appointment himself; attended the appointment himself; discussed his desires for how his estate would be distributed upon his death himself; and ultimately signed the will in question himself along with the powers of attorney. Decedent had independent legal advice working directly with his attorney who was highly experienced with clients in discussing, preparing and executing estate planning documents both as paralegal and a lawyer. There simply is no evidence that Testator was under anyone’s influence or was being coerced to change his will. Movant, Ms. Scott, has successfully demonstrated to the court that there exists no material issue of fact in dispute. Contestant has offered generalized and conclusory statements and allegations that do not prove Testator lacked capacity or was under duress or improper influence. Therefore, the Will Contest petition is dismissed. Costs are taxed to the Contestant, Jon Ryan Scott, for which execution may issue. Counsel for Movant shall prepare an order reflecting the terms of the above ruling. As the foregoing email reveals, the trial court provided a thoughtful analysis regarding testamentary capacity, duress, and undue influence—the matters at the heart of the dispute, and the final order prepared by Appellee’s counsel is consistent with the findings and rulings in the email. Thus, we find that the final order reflects the independent judgment of the trial court. II. WILL CONTEST The question presented in a will contest is whether the testamentary document offered for probate is or is not the testator’s valid will. In re Estate of Eden, 99 S.W.3d 82, 88 (Tenn. Ct. App. 1995) (citations omitted). Appellant commenced this will contest after the 2021 will was admitted to probate as a properly attested will. As is explained in Keasler v. Estate of Keasler, 973 S.W.2d 213 (Tenn. Ct. App. 1997) below, Appellant bears the burden of proof concerning the issues raised. The standard is set forth as follows: -8-  In cases such as this where there is a properly attested will, there is a presumption in the law that the Decedent was of sound mind and possessed the requisite testamentary capacity to make the will. Harper v. Watkins, 670 S.W.2d 611, 629–30 (Tenn. App. 1983). The burden in a will contest is always on the contestant to demonstrate suspicious circumstances or lack of testamentary capacity at the time of execution. Harper, 670 S.W.2d at 630. The contestant must produce evidence from which a jury could infer that the testator, at the time of executing the will, neither knew nor understood the force and consequences of his acts. In re Estate of Oakley, 936 S.W.2d 259 (Tenn. App. 1996). Id. at 217. A. Testamentary Capacity We shall first consider whether Decedent, “at the time of the will’s execution, lacked sufficient mental capacity.” In re Estate of Smallman, 398 S.W.3d 134, 159 (Tenn. 2013). Our Supreme Court described capacity as follows: 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. 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. 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. Id. (quoting In re Estate of Elam, 738 S.W.2d 169, 171 (Tenn. 1987) (citations omitted)). Moreover, the inquiry of competence “must center on the decedent’s mental condition at the time of execution of the will, and a contestant must introduce strong evidence to establish a lack of testamentary capacity at the time of execution of the will.” Keasler, 973 S.W.2d at 217 (citing American Trust & Banking Co. v. Williams, 32 Tenn. App. 592, 225 S.W.2d 79, 84 (1948)). “Evidence of a decedent’s mental state before or after execution is relevant only when said evidence is not too remote in time and evidence of physical condition is likewise admissible if it has a reasonable tendency to bear upon the testator’s mental capacity.” Id. at 218 (citing Harper v. Watkins, 670 S.W.2d 611, 629 (Tenn. App. 1983)). Further, “[t]he physical condition of the testator is of no consequence on the issue of testamentary capacity unless it has some effect on the mind.” Id. (citing Harper, 670 S.W.2d at 629). -9-  The trial court found that Appellant “simply has no evidence that his father lacked testamentary capacity” when he executed his will in September 2021. The court cited its finding that Decedent was examined by medical professionals a few weeks before and after the will execution, and was found to be oriented to person, time and place. The final order also identifies numerous undisputed facts concerning Decedent’s testamentary capacity at the time he executed the 2021 will and the fact that he had the benefit of independent legal advice concerning his estate plan. The more relevant findings read: 23. On August 25, 2021, Decedent’s medical records indicate a mental status exam was conducted, which found Decedent had adequate judgement, appropriate fund of knowledge, intact language, and was oriented as to person, place and time. 24. While present at the office of [his attorney] Kayla Costley [to settle the lawsuit initiated by his ex-wife regarding past due support], Decedent requested to meet with Ms. Costley for estate planning purposes and an appointment was made for August 27, 2021. 25. Kayla Costley came to be Mr. Scott’s attorney through the litigation with his ex-wife regarding their divorce decree. 26. On August 27, 2021, Decedent went to his estate planning meeting, at which only Decedent, Ms. Costley, and her paralegal at the time were present. 27. Kayla Costley attended hundreds of will signings while working as a paralegal and took over a portion of the estate planning practice at her law firm when she became a licensed attorney. 28. Decedent received independent legal advice from Kayla Costley. 29. Decedent was not influenced by any other person in his decision-making. 30. Kayla Costley was certain of Decedent’s testamentary capacity at the time of his estate planning meeting. 31. Kayla Costley and her colleagues were certain of Decedent’s testamentary capacity at the time of the execution of the 2021 estate planning documents on September 10, 2021. 32. On August 27, 2021, at the estate planning meeting, Decedent was adamant about including language about his life insurance policy to be clear that he was limiting the inheritance of his children. . . . 43. On October 13, 2021, Decedent underwent a mental status exam, which indicated that Decedent had adequate judgement, appropriate fund of knowledge, intact language, and was oriented as to person, place and time. - 10 -  . . . 51. Up until the time of Decedent’s death, Decedent knew who the people in his life were to him, “he knew exactly who everybody was.” The foregoing notwithstanding, Appellant contends genuine issues of material fact exist concerning whether Decedent had sufficient testamentary capacity when he executed the 2021 will; thus, summary judgment was inappropriate. We respectfully disagree, as did the trial court. Appellant contends the material facts are in dispute based on his response to Appellee’s Statement of Undisputed Facts. However, as the trial court found and the record supports, Appellant failed to demonstrate that the material facts were in dispute because he failed to comply with the mandate in Tennessee Rule of Civil Procedure 56.03, which requires that each disputed fact must be supported by specific citation to the record. As Rule 56.03 mandates: In order to assist the Court in ascertaining whether there are any material facts in dispute, any motion for summary judgment made pursuant to Rule 56 of the Tennessee Rules of Civil Procedure shall be accompanied by a separate concise statement of the material facts as to which the moving party contends there is no genuine issue for trial. Each fact shall be set forth in a separate, numbered paragraph. Each fact shall be supported by a specific citation to the record.4 Any party opposing the motion for summary judgment must, not later than five days before the hearing, serve and file a response to each fact set forth by the movant either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact is undisputed for purposes of ruling on the motion for summary judgment only, or (iii) demonstrating that the fact is disputed. Each disputed fact must be supported by specific citation to the record. Tenn. R. Civ. P. 56.03 (emphasis added). The trial court found “that objections were made by [Appellant] to several of the material facts, but that objections alone with no cite to the record are insufficient under Rule 56.03.” A trial court’s finding that citations to the record are insufficient is a 4 The record reveals that Appellee complied with Rule 56.03. - 11 - discretionary issue, see Owens v. Bristol Motor Speedway, Inc., 77 S.W.3d at 774–75, which is subject to a very deferential standard of appellate review. Having reviewed Appellee’s Statement of Undisputed Facts and Appellant’s response, we agree with the trial court’s finding that Appellant failed to demonstrate that the material facts were in dispute.5 Thus, as the trial court found, the material facts supporting Appellee’s motion for summary judgment were not in dispute. We also agree with the trial court’s determination that the undisputed facts established that Decedent possessed the requisite testamentary capacity when he executed his will on September 10, 2021. Accordingly, we affirm the trial court’s ruling that Decedent had the requisite testamentary capacity to execute the will on September 10, 2021. B. Duress and Undue Influence Appellant also argues that Decedent changed his will under duress or because of undue influence. While the standards for each are separate, they may be thought of as “cousins,” and we consider them here together. 21 TENN. PRAC. CONTRACT LAW AND PRACTICE § 6:11 (citing 25 Am. Jur. 2d Duress and Undue Influence, § 30 (1996)). The trial court concluded that there was no evidence to support Appellant’s claim of undue influence or duress, finding as follows: 52. When [Appellant] was asked about the allegations he has made regarding duress, he only stated his father was in poor health and incapable of completing his ADLs. 53. When [Appellant] was asked about the allegations he has made regarding undue influence, he states only that he “could see a scenario” where his father was coerced, but could cite no conversation, instance of coercion, or evidence of the same. The court further found: The proof demonstrates that Testator initiated the estate planning appointment himself; attended the appointment himself; discussed his desires for how his estate would be distributed upon his death himself; and ultimately signed the will in question himself along with the powers of attorney. 5 See infra footnote 2. - 12 -  The Court further finds that Decedent had independent legal advice with regard to the will, working directly with his attorney Kayla Costley who was highly experienced with clients in discussing, preparing and executing estate planning documents both as paralegal and a lawyer. There simply is no evidence that Testator was under anyone’s influence or was being coerced to change his will. Nevertheless, Appellant argues that Decedent and Appellee were in a confidential relationship, because the power of attorney documents signed by the Decedent gave her full authority to handle his affairs. Appellant cites Matlock v. Simpson, 902 S.W.2d 384 (Tenn. 1995), which explained that “Tennessee cases have consistently held that the existence of a confidential or fiduciary relationship, together with a transaction by which the dominant party obtains a benefit from the other party, gives rise to a presumption of undue influence that may be rebutted.” Id. at 385 (emphasis in original). Here, there is no evidence to show that Appellee exercised the power of attorney granted her by Decedent before the 2021 will was executed. This fact is significant because “an unexercised power of attorney does not in and of itself create a confidential relationship[.]” Childress v. Currie, 74 S.W.3d 324, 329 (Tenn. 2002). As the Supreme Court explained, dominion and control form the core of a confidential relationship, and “[w]hen an unrestricted power of attorney is executed but has not yet been exercised [by the attorney-in-fact], 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. See also In re Estate of Lipscomb, No. W2018-01935-COA-R3-CV, 2020 WL 1549596, at *8 (Tenn. Ct. App. Apr. 1, 2020); In re Estate of Chaney, No. E2022- 01051-COA-R3-CV, 2023 WL 6301763, at *7 (Tenn. Ct. App. Sept. 28, 2023). Additionally, Decedent’s marital relationship with Appellee does not constitute a confidential relationship without proof of the elements of dominion and control. In re Estate of Perry, No. M2025-00251-COA-R3-CV, 2026 WL 1122332, at *6 (Tenn. Ct. App. Apr. 24, 2026). Moreover, a claim of undue influence may be defeated by a showing that a testator “received independent advice before engaging in the transaction” in question, and it is undisputed that Decedent received independent legal advice from Ms. Costley. See Childress v. Currie, 74 S.W.3d at 328. Further, as the trial court correctly found, the record shows no evidence of any attempt by Appellee or others to unduly influence Decedent to execute the will in question. Likewise, Appellant’s claim of duress is based on the fact that Decedent was highly reliant on Appellee for his healthcare and other personal needs. To this end, Appellant testified that, because of his father’s dependence on Appellee, he “one hundred percent could see a scenario” where Decedent was coerced. However, upon questioning, Appellant acknowledged he did not know if such a scenario existed. - 13 -  Duress may be properly found when there has been “unlawful restraint, intimidation, or compulsion of another to such an extent and degree as to induce such other person to do or perform some act which he is not legally bound to do, contrary to his will and inclination.” Johnson v. Ford, 245 S.W. 531, 538 (1922). This record is devoid of such proof. And as the trial court found, “When [Appellant] was asked about the allegations he has made regarding duress, he only stated his father was in poor health and incapable of completing his ADLs.” Accordingly, we agree with and affirm the trial court’s ruling that Appellant was entitled to summary judgment as a matter of law on all three issues. And based on these rulings we affirm the summary dismissal of the will contest. II. ATTORNEY’S FEES Finally, we address Appellee’s claim for attorney’s fees. Appellee contends that this appeal is frivolous because no contested facts are properly in dispute before this court. “An appeal is frivolous when it ‘has no reasonable chance of success’ or is ‘so utterly devoid of merit as to justify the imposition of a penalty.’” Upadhyaya v. Awasthi, No. M2025-01629-COA-R3-CV, 2026 WL 2672360, at *5 (Tenn. Ct. App. Sept. 11, 2026) (quoting Stokes v. Stokes, No. M2018-00174-COA-R3-CV, 2019 WL 1077263, at *10 (Tenn. Ct. App. Mar. 7, 2019) (see also Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 2009)). Moreover, “[a]n award of appellate attorney’s fees is within this Court’s sole discretion, though the statute is meant to be applied sparingly ‘to avoid discouraging legitimate appeals.’” Id. Although we acknowledge the procedural shortcomings in Appellant’s case, upon review of the record, we decline to find the argument presented “so utterly devoid of merit” as to warrant a designation of frivolous. Id. Thus, we decline to award attorney’s fees on this basis. IN CONCLUSION The judgment of the Wilson County Probate Court is affirmed. Costs of appeal are assessed against Appellant, Ryan Jon Scott. ________________________________ FRANK G. CLEMENT JR., C.J. - 14 -