Wells v. Estate of Wells

Jack WELLS and Reba Wells v. The ESTATE of
Reba A. WELLS

95-1299                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 3, 1996


1.   Wills -- review of probate cases -- burden of proof. --
     Probate cases are reviewed de novo on appeal, and the
     appellate court will not reverse unless the findings of the
     probate judge are clearly erroneous; due deference will be
     given to the superior position of the probate judge to
     determine the credibility of the witnesses and the weight to
     be accorded their testimony; in the typical will contest, the
     party contesting the validity of the will has the burden of
     proving by a preponderance of the evidence that the testator
     lacked mental capacity at the time the will was executed or
     that the testator acted under undue influence.

2.   Wills -- testimony clearly put possibility of duress and undue
     influence into issue -- probate judge not clearly erroneous in
     refusing to probate will. -- Although there was considerable
     other testimony introduced below, the testimony reviewed on
     appeal showed that the question whether the decedent was under
     duress and undue influence when she signed the May 6, 1994
     instrument the appellant's family had prepared was very much
     in issue; based upon the record before the court, it could not
     be said that the probate judge was clearly erroneous in
     finding duress and undue influence and refusing to probate the
     May 6 instrument as the decedent's last will.

3.   Wills -- revocation of -- will not revoked by trust
     instrument. -- Appellant's argument that the probate judge
     erred in probating the July 8 will because it had been revoked
     by an inter vivos trust executed on February 24, 1994, was
     meritless where appellant had no standing to raise the issue
     because nothing in the record purported to give him any
     interest in the trust or the will, and the revocation of wills
     is governed by Ark. Code Ann.  28-25-109 (1987), which has
     been uniformly construed to mean that the only methods of
     revoking a will are those enumerated in the statute, none of
     which were present here; section 28-25-109 does not provide
     that a prior will can be revoked by a trust instrument, nor
     was there any evidence that the July 8, 1993 will was revoked
     by any method authorized under  28-25-109.


     Appeal from Sebastian Probate Court; Warren O. Kimbrough,
Probate Judge; affirmed.
     Michael J. Medlock, for appellants.
     Paul R. Post, for appellee.

     Tom Glaze, Justice.
*ADVREP*SC4*






JACK WELLS AND REBA WELLS,
                    APPELLANTS,

V.

THE ESTATE OF REBA A. WELLS,
                    APPELLEE.



95-1299

Opinion Delivered:  6-3-96

APPEAL FROM THE PROBATE COURT
OF SEBASTIAN COUNTY, ARKANSAS,
NO. P94-132(I); HONORABLE
WARREN O. KIMBROUGH, PROBATE
JUDGE 

AFFIRMED





                  TOM GLAZE, Associate Justice

     This litigation arose after Reba A. Wells died on May 13,
1994.  Five days later, Ms. Wells's stepson, Jack Wells, filed a
petition in probate court, submitting an untitled instrument dated
May 6, 1994, as Ms. Wells's last will, and requesting that he be
appointed executor.  On May 19, 1994, Michie Daniels, Ms. Wells's
niece, petitioned the probate court, offering an instrument dated
July 8, 1993, entitled the Last Will and Testament of Reba A.
Wells.  After a hearing, the trial judge declined to probate the
instrument proffered by Jack Wells, holding the instrument was not
a will, nor properly executed as such.  The judge concluded (1) the
instrument failed to reflect it was a will, (2) it was not executed
as a will under Ark. Code Ann.  28-25-103 (1987), and (3) the
decedent, Ms. Wells, never declared before a witness that the
instrument was a will.  Furthermore, the judge held the proof of
will accompanying the instrument submitted by Jack Wells was not
supported by the evidence.  Finally, he found that, when she
executed the May 6, 1994 instrument and other related documents,
Reba A. Wells was under duress and undue influence.  The probate
judge admitted to probate the Reba A. Wells will dated July 8,
1993, finding it properly executed and valid.
     In this appeal, Jack Wells challenges all of the probate
judge's findings in holding the May 6, 1994 instrument to be
invalid.  He argues that, while Reba A. Wells may not have declared
to the witnesses that the May 6, 1994 instrument was her will, such
a declaration was not required.  See Faith, 286 Ark. 403, 692 S.W.2d 239 (1985) (court stated it is not required that a testator
recite precisely the words "this is my will," although that is
obviously the preferred practice).  Nor, he argues further, was it
impermissible for one of the two witnesses to be the notary who
subscribed the instrument and accompanying proof of will.  Wells
relies on the principle that, where there is no indication of
fraud, deception, undue influence, or imposition, this court avoids
strict technical construction of statutory requirements in order to
give effect to the testator's wishes.  Faith v. Singleton, 286 Ark.
403, 692 S.W.2d 239.  In sum, Wells argues that the facts of this
case do not call for the strict application of  28-25-103 and its
requirement for the proper execution of a will; therefore the trial
judge erred in refusing to probate the May 6, 1994 instrument as
Reba Wells's last will.  We cannot agree.
     We first point out that probate cases are reviewed de novo on
appeal, and this court will not reverse unless the findings of the
probate judge are clearly erroneous.  Looney v. Estate of Wade, 310
Ark. 708, 839 S.W.2d 531 (1992).  Due deference will be given to
the superior position of the probate judge to determine the
credibility of the witnesses and the weight to be accorded their
testimony.  Id.  In the typical will contest, the party contesting
the validity of the will has the burden of proving by a
preponderance of the evidence that the testator lacked mental
capacity at the time the will was executed or that the testator
acted under undue influence.  Id.  The probate judge here found the
evidence showed clearly that Reba A. Wells was under duress and
undue influence when she executed the May 6, 1994 instrument and
therefore the instrument should not be found to be Reba's will.
     Jack Wells argues that the probate judge erred because there
was no credible evidence of malign influence on his and his
family's part.  He points to the evidence he presented at the
hearing that he and his wife took care of Reba after her husband
died, and he was named on Reba's checking account.  Jack's wife
testified that Reba spent holidays with their family and pictures
were introduced of these family events.  His wife also related that
it was Reba, not Jack Wells, who requested the May 6 instrument be
prepared.  Dr. David Staggs also testified that, in his view, Reba
was capable of managing and handling her business affairs.
     Other strong evidence conflicted with that presented by Jack
Wells.  For instance, Reba's niece, Doris Lundeen, testified that
Jack Wells did not contact any of the nieces for three days after
Reba was hospitalized for her heart attack in March 1994; and Jack
had asked Reba's sister not to call.  Niece Michie Daniels said
that Jack Wells told her and others that they could not see Reba
because of doctor's orders, but hospital personnel allowed them to
do so.  Franklin Wilder, Reba's attorney, said that Reba called
him, saying she had been a prisoner held by Jack Wells, that Jack
Wells and others made her sign a bunch of papers, and that she did
not know what she had signed.  Wilder testified Reba had said that
they were trying to get her house and that she wanted her niece to
come rescue her.  Another niece of Reba's, Barbara Barnes,
testified that Reba said Jack and his wife had mistreated her, and
she was afraid of him.  Barnes quoted Reba as saying that Jack and
his family were holding her prisoner and that Jack had taken her
someplace to sign something; she did not know what it was, but was
afraid she signed her house away.  A neighbor also testified
confirming Jack had been mean to Reba after they had gotten what
they wanted from her.
     Although there was considerable other testimony introduced
below, the foregoing testimony shows that, whether Reba was under
duress and undue influence when she signed the May 6, 1994
instrument the Jack Wells family had prepared, was very much in
issue.  Based upon the record before us, we cannot say the probate
judge was clearly erroneous in finding duress and undue influence
and refusing to probate the May 6 instrument as Reba's last will.
     Jack Wells's other argument is that the probate judge erred in
probating the other titled instrument, July 8, 1993 Last Will and
Testament of Reba A. Wells, because it had been revoked by an Inter
Vivos Trust executed on February 24, 1994, revoking all prior
wills.  Wells does not otherwise contest the validity and execution
of the 1993 will.
     First, while not argued, Wells probably has no standing to
raise the issue since we find nothing in the record except the
May 6, 1994 instrument that purports to give him any interest in
the trust or the July 8 will.  Nonetheless, his argument is without
merit in any event.  The revocation of wills is governed by Ark.
Code Ann.  28-25-109 (1987), which provides as follows:
          (a)  A will or any part thereof is revoked:
          (1)  By a subsequent will which revokes the prior
     will or part expressly or by inconsistency; or
          (2)  By being burned, torn, cancelled, obliterated,
     or destroyed, with the intent and for the purpose of
     revoking it by the testator or by another person in his
     presence and by his direction.
          (b)  If, after making a will, the testator is
     divorced or the marriage of the testator is annulled, all
     provisions in the will in favor of the testator's spouse
     so divorced are revoked.  With these exceptions, no will
     or any part thereof shall be revoked by any change in the
     circumstances, condition, or marital status of the
     testator; subject, however, to the provisions of  28-39-
     401.
          (c)  Where there has been a partial revocation,
     reattestation of the remainder of the will shall not be
     required.
     In construing  28-25-109, we have uniformly held that the
only methods of revoking a will are those enumerated in the
statute.  In Re Estate of O'Donnell, 304 Ark. 460, 803 S.W.2d 530
(1991); Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99 (1950). 
Section 28-25-109 does not provide that a prior will can be revoked
by a trust instrument, nor is there any evidence that Reba's July
8, 1993 will was revoked by any method authorized under  28-25-
109.
     For the reasons above, we affirm.
     DUDLEY, J., not participating.