Carroll Drymon et al. v. Shirley Drymon Miller

ca02-401

DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

CA02-401

December 18, 2002

CARROLL DRYMON, et al. AN APPEAL FROM BENTON COUNTY

APPELLANTS CIRCUIT COURT

[E-2001-84-5]

v.

HONORABLE JOHN R. SCOTT,

SHIRLEY DRYMON MILLER CIRCUIT JUDGE

APPELLEE

AFFIRMED

This appeal is from an order of the Benton County Circuit Court denying appellants' petition to set aside a living trust, deed, will, and power of attorney executed by their mother, Salena Drymon. We affirm the circuit judge's decision.

On August 10, 2000, Mrs. Drymon made her daughter, appellee Shirley Drymon Miller, with whom she lived during the last months of her life, the beneficiary and successor trustee of her trust and gave her a power of attorney. In her will, she expressly disinherited appellants Carroll Drymon, Chester Drymon, Cecil Drymon, Virginia Drymon Schrader, Clifford Drymon, and Clinton Drymon and left the residue of her estate to the trust. Mrs. Drymon conveyed her real property by deed and her personal property by bill of sale to the trust. At the same time, appellee signed an agreement to furnish support for Mrs. Drymon for the remainder of her life. Mrs. Drymon died at the age of eighty-nine on December 27, 2000.

Appellants filed suit to set aside these documents, alleging that appellee procured them and exerted undue influence on their mother, who lacked the requisite mental capacity to sign them. In the alternative, appellants argued that appellee had breached her agreement to support Mrs. Drymon.

At trial, appellants presented the testimony of attorney Stanley Ludwig, who drafted the documents, Dr. Malcom Hayward (Mrs. Drymon's oncologist), and appellee. The judge then found that appellee had procured Mrs. Drymon's will. Appellants subsequently called appellants Virginia Schrader, Carroll Drymon, and Chester Drymon. Appellee presented no evidence in rebuttal but did cross-examine these witnesses. The parties stipulated to the following exhibits: Mrs. Drymon's December 20, 2000, authorization for Mr. Ludwig to release information about her estate-planning documents; Mr. Ludwig's notes to his file; appellee's agreement to support Mrs. Drymon; the other estate-planning documents; and Mrs. Drymon's medical records.

In an order entered November 5, 2001, the judge denied appellants' petition. He found that appellee had procured the will and trust, noting that appellee had made the initial telephone call to Mr. Ludwig; appellee was present when Mr. Ludwig provided estate-planning advice to Mrs. Drymon; appellee returned to Mr. Ludwig's office to obtain drafts of the documents for her mother's review; and appellee took Mrs. Drymon to Mr. Ludwig's office to execute the final drafts of the documents. He found that appellee's having procuredthese documents caused a rebuttable presumption of undue influence to arise, requiring her to prove beyond a reasonable doubt that the documents were not products of undue influence or of insufficient mental capacity on Mrs. Drymon's part. The judge found that appellee had satisfied this burden and made findings of fact to support his decision:

A. Attorney Ludwig, who had no prior relationship with Shirley Drymon Miller or with Salena Drymon, was satisfied from his two meetings with Salena Drymon that she was not under the influence of the [appellee], Shirley Drymon Miller, or anyone else; that she was competent, appreciated the extent of her bounty, and knew the natural objects of her love and affection. He testified, which testimony was uncontroverted, that Salena Drymon named the three most recent Presidents of the United States, intelligently discussed the 48 acres she owned in Benton County, Arkansas, was able to name all of her children chronologically by age, knew the year of her husband's death, and, most importantly, when Attorney Ludwig challenged her distribution of substantially all of her estate to the [appellee], Shirley Drymon Miller. Salena Drymon maintained steadfastly and clearly that she was aware of the consequences of her actions and desired to pursue those actions. In addition to this testimony, Stipulated Exhibit 12, Attorney Ludwig's notes, show that Salena Drymon was not unduly influenced by the [appellee].

B. Dr. Malcolm Hayward, her attending physician since the mid-1980's, testified that he had no personal knowledge as to the extent of Salena Drymon's assets, that she always knew what was being said and participated in his conferences with her, noting that "nothing slipped by her." Dr. Hayward further testified that he was not aware of any dominance of Salena Drymon by Shirley Drymon Miller, or anyone else; that Salena Drymon always talked "straight" to him; and that on occasion she expressed her anger, regarding various matters, to him. Dr. Hayward testified that he conducted medical examinations of Salena Drymon on July 21, 2000, and September 22, 2000, and that his last examination was on November 3, 2000.

C. Shirley Drymon Miller testified as to the care she provided for her mother, Salena Drymon, and that she never told her mother "no" for anything her mother requested. Shirley Drymon Miller also testified that in June of 2000, Salena Drymon informed Carol Drymon, Virginia Schrader, and Chester Drymon that she was leaving substantially all of her estate to the[appellee]. While this fact was subsequently disputed by the testimony of other parties allegedly present, this factual dispute does not demonstrate the exercise of undue influence by the [appellee] over Salena Drymon regarding disposition of her assets, or that Salena Drymon lacked sufficient mental capacity to execute such testamentary documents.

Arguments

On appeal, appellants have no quarrel with the judge's finding that appellee procured the will and trust but argue that he erred in finding that appellee did not unduly influence Mrs. Drymon and that Mrs. Drymon was competent at the time she signed the documents. Without filing a notice of appeal, appellee argues that we should reverse the judge's finding that she procured the documents. As we affirm the trial court, even if we were to reverse that finding, appellee would be entitled to no further relief than she received below. Thus, we need not address that question.

Standard of Review

Although equity cases are reviewed de novo on appeal, we will reverse a trial court's determination on the factual questions of mental capacity and undue influence only if it is clearly erroneous, giving due deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001).

Mental Capacity and Undue Influence

In support of their argument that Mrs. Drymon lacked mental capacity to sign the documents, appellants point out that she was eighty-nine years old when she signed them; she had a third-grade education; her eyesight was deteriorating; she experienced someconfusion in the six months before the documents were signed; and she was taking prescription pain medicine on a routine basis.

The law regarding mental capacity in the execution of a will is also applicable to the execution of a deed and the creation of a trust. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). It has often been stated that the questions of mental capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considers them together, for, in one case where the mind of the testatrix is strong and alert, the facts constituting undue influence would be required to be felt stronger than in another case, where the mind of the testatrix was impaired either by some inherent defect or by the consequences of disease or advancing age. Pyle v. Sayers, supra.

Every person of sound mind and disposing memory has the untrammeled right to dispose of her property as she pleases. Pyle v. Sayers, supra. If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in her memory, without prompting, the extent and condition of her property, and to comprehend how she is disposing of it, and to whom, and upon what consideration, then she possesses sufficient mental capacity to execute such instrument. Rose v. Dunn, supra. The relevant inquiry is not the mental capacity of the testatrix before or after a challenged will is signed but rather the level of capacity at the time the will was signed. Pyle v. Sayers, supra. Proof of the testatrix's condition both before and after the document's execution is relevant as to her condition at the time the document was executed. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997).

A testatrix's old age, physical incapacity, and partial eclipse of mind will not invalidate a will if she has the requisite testamentary capacity when the will is executed. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999). A testatrix does not lack testamentary capacity merely because old age has impaired her mental faculties. Id. Complete sanity in the medical sense is not required if the power to think rationally existed at the time the document was made. Noland v. Noland, supra. A finding of mental competency at the time of the execution of a document has been upheld on appeal even in the evidence of some mental deterioration. Id. Despite any mental impairment, the testatrix may execute a will if she is experiencing a lucid interval. Id. In Thiel v. Mobley, 223 Ark. 167, 265 S.W.2d 507 (1954), the supreme court reversed a trial court's finding of lack of mental capacity despite proof that the testatrix was often under the influence of opiates that she had been taking for her pain from cancer.

Mr. Ludwig's and Dr. Hayward's testimony supported the judge's finding that Mrs. Drymon possessed the requisite mental capacity. Mr. Ludwig testified that he went to great pains to verify that Mrs. Drymon was capable of executing the documents, that she knew how she wanted to dispose of her estate, and that she was doing so without pressure from appellee. He said that Mrs. Drymon made it clear that she was leaving her entire estate to appellee because appellee had taken care of her, with little help from appellants, for a long time. Mr. Ludwig said that Mrs. Drymon quickly and easily named the last three presidents; discussed her property, including forty-eight acres in Benton County; named all seven of her children; and told him what year her husband had died.

Dr. Hayward, who testified that he had seen appellee since she was diagnosed with lymphoma in the mid-1980s, was also sure of Mrs. Drymon's mental capacity. He testified that, although she was quite feeble, she was "perfectly clean," was oriented in time and place, and could understand and respond appropriately to his questions. He also verified that appellee had brought Mrs. Drymon to see him since the early 1990s. Although Mrs. Drymon was taking hydrocodone, Darvocet, and methadone, he stated that he had never seen her confused and had never believed that she was incompetent or unable to understand what he was talking about.

Appellants also urge us to reverse the judge's finding regarding undue influence. The influence that the law condemns and regards as undue is not the legitimate influence that springs from natural affection, but the malign influence that results from fear, coercion, or any other cause that deprives the testatrix of her free agency in the disposition of her property. Pyle v. Sayers, supra. Undue influence is generally exercised in secret, not openly, Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955), and it may be inferred from the facts and circumstances of a case. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992). However, whether the disposition was a natural one is a relevant inquiry. Pyle v. Sayers, supra. A testatrix's decision to favor a person with whom she had a close and affectionate relationship is not, of itself, proof that the favored beneficiary procured the will by undue influence. Hodges v. Cannon, supra. The influence of children over parents is legitimate so long as they do not extend a positive dictation and control over the mind of the testatrix. Pyle v. Sayers, supra. A beneficiary of a will does not exercise undue influenceover the testatrix merely because the beneficiary influenced her in the ordinary affairs of life or because the beneficiary was in a confidential relationship with the testatrix when she executed her will. Hodges v. Cannon, supra.

Mr. Ludwig's testimony soundly rebuts appellants' allegations of undue influence. He testified that, in order to make certain that appellee was not unduly influencing Mrs. Drymon, he asked appellee to leave the room and did the following:

I had the two secretaries come in and act as witnesses to the signing of the will and the durable power of attorney. I then asked Mrs. Miller, Shirley Miller, to leave the room.

Once she was out of the room I explained again to Mrs. Drymon, "Mrs. Drymon, now you understand that I represent you. I don't represent your daughter Shirley. I don't represent your other kids. I represent you." She said, "Yes, I understand that."

I said, "If there's - if you're feeling dependent on Shirley and you're getting scared that she won't take care of you, you're thinking you're going to get ill and they're going to put you in a nursing home and you're doing this to get leverage, bargaining leverage with Shirley, look, we can tear all this stuff up, throw it away, and I'll escort you out in the waiting room and just tell Shirley that I'm going to keep the documents in the office and I won't tell her that we tore everything up, and then it's just like you're back to normal, when you die all your kids will get an equal share of your estate." And she said, "No."

And I think I said it a second time, "Now, look, I'll tear this up. I won't tell Shirley. I promise you. I'm your lawyer. I won't tell her. It will be our secret, and it won't come up until you die, and then all seven kids will share equally." She said, "No, Shirley deserves it." She kinda got back in my face at that point, "Shirley deserves it." So I said, "Okay. All right, fine."

I told her, I said, "There will probably be a lawsuit." She said, "Well, that's their problem."

Additionally, Dr. Hayward testified that appellee never appeared to dominate or control Mrs. Drymon.

In light of this testimony, we cannot say that the trial judge erred in finding that appellee proved beyond a reasonable doubt that the documents in issue were not the products of insufficient mental capacity or undue influence.

Affirmed.

Stroud, C.J., and Neal, J., agree.