Paul W. Schaefer v. John M. McAllister, Administrator of the Estate of Louis E. Schaeffer, Deceased

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

PAUL W. SCHAEFER

APPELLANT

V.

JOHN M. McALLISTER, Administrator of The Estate of LOUIS E. SCHAEFER, Deceased

APPELLEE

CA 00-354

February 28, 2001

AN APPEAL FROM THE PULASKI COUNTY PROBATE COURT

[NO. PDE-97-2082]

HONORABLE COLLINS KILGORE, PROBATE and CHANCERY JUDGE

AFFIRMED

Appellant, Paul W. Schaefer, appeals an order of the Pulaski County Probate Court denying his will contest. First, appellant argues that the probate court erred in failing to shift to the appellee the burden of proving that the will and codicil were not procured by undue influence. Second, he asserts that the probate court erred in finding that the will was not a result of undue influence and that the testator had the requisite testamentary capacity. Finally, appellant argues that the trial court erred in denying appellant's motion to remove the personal representative due to a conflict of interest and misfeasance. The appellee contends, and we agree, that the probate court should not have allowed appellant's contest of the will because it was time-barred, and we affirm on that basis. However, we have also examined the issues raised by appellant as if the will contest had been timely filed, and we find no merit to his arguments.

Facts

Appellant is the son of decedent Louis E. Schaefer. Appellee, John M. "Bo" McAllister, is

the decedent's attorney and the administrator of the decedent's estate. Louis Schaefer died testate on November 21, 1997, at the age of eighty-five. He was survived by two heirs-at-law, Judy Schaefer Blevins (his daughter) and appellant. In 1988, appellee prepared a will for decedent, providing that his entire estate would be left in trust in equal shares for his children and his brother, and naming appellee as executor of the will. However, decedent's brother predeceased him, and on February 1, 1992, decedent executed a second will. This will left a cash bequest of $25,000 to each of decedent's children, named appellee as executor, and ordered that the remainder of the decedent's assets were to be divided among eleven charities. A third will was executed on August 31, 1995, containing the same provisions as the 1992 will; however, the decedent added a cremation provision, instructing that his body was to be cremated at the lowest price available and his ashes cast into the Arkansas River. The witnesses to the 1995 will were the appellee's daughter, father-in-law, and mother-in-law; appellee's wife notarized the will. A first codicil to the 1995 will, reducing the bequests to the decedent's children to $10,000 each, was executed on December 16, 1996. It was witnessed by employees of Superior Federal Bank, and notarized by appellee The decedent further instructed appellee that neither of his children, nor any other relatives, were to be allowed entry into his home until everything was inventoried and priced to be sold. In addition to his wills, the decedent established a Pay On Death account at Superior Federal Bank designated to Christ the King Catholic Church. The account grew from $80,000 to almost $290,000 at the time of decedent's death. The value of decedent's net estate, at the time of his death, exceeded 1.5 million dollars.

The probate court found that the 1995 will and first codicil were in all respects properly executed by the decedent and the witnesses, that the decedent possessed testamentary capacity, and that he was not acting under any undue influence or subjected to fraud or restraint. The court also found that the appellant failed to produce any credible evidence that the personal representativeunduly influenced the decedent's testamentary decisions in order to procure money for the church.

Time Bar

Appellee raises the issue in his brief that appellant's contest of the will was time-barred. Although appellee did not file a cross-appeal on timeliness, we can still address the issue since the appellee is not seeking any relief that he did not receive in the lower court. Boothe v. Boothe, 341 Ark. 381, 17 S.W.3d 464 (2000). The record shows that notice of the opening of the estate was first published on December 1,1997, and appellant received certified notice on December 6, 1997. Under Arkansas Code Annotated § 28-40-113(b)(2)(B)(1987), appellant had three months after the first publication of the notice to file his objection; therefore, appellant had until March 1, 1998. Appellant waited until December 16, 1998, to file a letter of objection. In his brief to the probate court, appellant argued that he should be able to contest the will beyond March 1, 1998. He first argued that the motion for continuance he filed on the sale of estate property should arrest the statute. He also argued that it is within the discretion of the probate court to extend the time period for filing a will contest when the petitioner would otherwise be deprived of his interest in the decedent's estate. Over appellee's objection, on December 22, 1998, the probate court entered an order giving appellant until the close of business on January 15, 1999, to file his will contest and appellant complied.

Arkansas Code Annotated section 28-1-115(a) (1987) provides:

For good cause and at any time within the period allowed for appeal after the final termination of the administration of the estate of a decedent or ward, the court may vacate or modify an order or grant a rehearing. However, no such power shall exist ... to set aside the probate of a will after the time allowed for contest thereof.

(Emphasis added.) This statute gives probate courts a great deal of flexibility with regard to the finality of their orders, but it sets a high priority on the limitations period for a will contest. InMontgomery v. Blakenship, 217 Ark. 357, 230 S.W.2d 51 (1950), the supreme court refused to allow an attack on a trust document that was incorporated into a will. The court held that since no attack was made on the will within six months after it was duly probated and notice thereof published, the plaintiffs were barred by limitations from contesting it, under the provisions of Act 401 of 1941 codified at Ark. Stat. Ann. § 60-210 (1947).

We will affirm the trial court where it reached the right result, even though it may have announced the wrong reason. State v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999). In that regard, we are not constrained by the trial court's rationale but may go to the record for additional reasons to affirm. Id. At a hearing on February 2, 1998, the probate judge reminded appellant that he was required to file his objection if he wanted to contest the will.1 Appellant did file his contest; unfortunately, he filed it on January 15, 1999, a full ten months and two weeks after the statutory deadline. It is clear from the record that the time had run for contesting the will, and the court erred in holding otherwise.

Merits of the Case

However, even if we had considered the merits of the case, appellant could not prevail. We review probate court orders de novo on appeal and will not reverse unless the probate court clearly erred. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999). A probate court order is clearly erroneous if it is clearly against the preponderance of the evidence. In re Davidson, 310 Ark. 639, 839 S.W.2d 214 (1992). We will consider a probate court's finding of fact to be clearly erroneous when we are left with the definite and firm conviction that the probate court erred. Balletti v.Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999). In determining the credibility of witnesses and the weight to be accorded their testimony, we defer to the superior position of the probate judge. Hodges v. Cannon, supra.

Burden Shifting

In a will-contest case, after the proponent of the will proves that it is rational on its face and has been executed and witnessed in accordance with testamentary formality, the party challenging the validity of the will is required to prove by a preponderance of the evidence that the will is invalid. Hodges, supra. In the case of a beneficiary of a will who procures the making of the will, a rebuttable presumption of undue influence arises, which places on the beneficiary the burden of going forward with evidence that would permit a rational fact-finder to conclude, beyond a reasonable doubt, that the will was not the product of insufficient mental capacity or undue influence. Id. Whether the beneficiary procured the making of a will is a threshold question that must be answered in the affirmative before the beneficiary must prove beyond a reasonable doubt that the testator enjoyed both the required mental capacity and freedom of will. Id. However, the burden of proof, in the sense of the necessity to prove lack of mental capacity or undue influence by a preponderance of the evidence, remains on the party challenging the will. Id.

Here, appellant relies heavily on the language expressed in Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992). In Looney, our supreme court held that a proponent of a will who is a beneficiary and who drafted the will or caused it to be drafted has the burden to prove beyond a reasonable doubt that the will was not a result of undue influence and that the testator had the mental capacity to make the will. In the context of a will, a "beneficiary" is a person named in a will to receive specified property. Black's Law Dictionary, 157 (6th ed. 1990).

In the case at bar, it is clear from the record that appellee is not a beneficiary of the will. Nospecific bequest is directed to his benefit. While some of the testator's gifts to charity indirectly benefitted the Catholic church, there was no proof that they amounted to any benefit to appellee. Also, the fees awarded to appellee as executor of the estate are not a benefit, but are merely wages for worked performed. Further, there is no evidence that appellee in any way sought to procure the making of the will, but merely advised the decedent and drafted the will pursuant to his explicit instructions. Interestingly, the 1995 will states, "Mr. McAllister has advised me that I should select someone other than he to serve as Executor, but it is my decision that he be appointed." However, despite the evidence that appellee did not procure the making of the will, nor did he benefit from it, the probate judge erroneously addressed burden shifting by requiring appellee to go forward with the production of evidence establishing that the will was not a product of undue influence.

Testamentary Capacity and Undue Influence

The degree of undue influence necessary to invalidate a will must be a malign influence resulting from fear, coercion, or any other cause which deprives the testator of his free agency in disposing of his property. Hodges v. Cannon, supra. A testator's decision to favor a person with whom he had developed a close and affectionate relationship is not, of itself, proof that the favored beneficiary procured the will by undue influence. Id.

The only evidence presented to support a finding of lack of the requisite testamentary capacity was the testimony of Albert L. Kittrell, a staff psychiatrist at the Arkansas State Hospital. Dr. Kittrell was of the opinion that the decedent was susceptible to undue influence; however, Dr. Kittrell did not personally evaluate Mr. Schaefer, and he did not evaluate his testamentary capacity at the time the wills were made. On the contrary, two other medical doctors who did personally consult with Mr. Schaefer both offered the opinion that his memory was intact and that he was aware of the nature of his assets and his wishes. Further, numerous lay witnesses testified as to Mr.Schaefer's intentions, and there was no proof whatsoever of any fear or coercion amounting to undue influence.

After our de novo review, we agree with the probate judge that appellant failed to produce any credible evidence that the personal representative unduly influenced the decedent. The record is devoid of any evidence of fear, coercion, or procurement. Regardless of the burden shifting analysis, the ultimate burden of proof rests on the will challenger. Rose v. Dunn, supra. Several witnesses testified that the decedent was alienated from his children, that he was lonely, and that he wanted to leave most of his money to various charities. Further, the decedent had a long history of giving to the various charities named in his will. When reviewing the proceedings below, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Amant v. Callahan, 341 Ark. 857, 20 S.W.3d 896 (2000). Here, we cannot say that the probate judge's conclusion was clearly erroneous.

Removal of Personal Representative

The third issue the appellant asks this court to review is whether the probate court erred in denying appellant's motion to remove the personal representative for conflict of interest and misfeasance. As with the first two issues, appellant has failed to offer any evidence to support this conflict-of-interest claim. The court found that merely being nominated by the decedent to be his personal representative did not confer a "benefit" to appellee. While appellee did act as an attorney in his preparation of the wills for the decedent, he did not act as an attorney for the estate or benefit from the estate other than to collect his executor fees which he legally earned.

Appellant also alleges misfeasance. Misfeasance is defined as improper performance of some act which a man may properly do. Black's Law Dictionary 1151 (Rev. 4th ed. 1968). The misfeasance alleged by appellant relates to appellee's failure to determine the extent of loss sufferedby the decedent in a real estate deal he and a Mr. Walter Gardner partnered in. However, appellee testified that he did not represent the decedent in his business dealings with Gardner and that he personally advised him to discontinue the relationship. He testified further that he had unsuccessfully attempted to contact Gardner and had also examined the decedent's personal papers in an attempt to ascertain the extent of loss incurred by decedent in his real estate dealings with Gardner. Based on these facts, we cannot say that the probate court was clearly erroneous in denying the motion to remove appellee as personal representative.

Affirmed.

STROUD, C.J., and BIRD, J., agree.

1 The probate judge set a deadline of February 27, 1998, to file the will contest. Although this deadline was actually two days earlier than the statutory deadline, appellant was represented by counsel and made no objection or attempt to extend the deadline before the expiration of the statutory deadline.