Carol Ann Small v. Stanley Lewis Small

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

CAROL ANN SMALL

APPELLANT

V.

STANLEY LEWIS SMALL

APPELLEE

CA 02-824

April 30, 2003

APPEAL FROM THE CRAWFORD

COUNTY PROBATE COURT

[P-2001-96]

HONORABLE FLOYD G. ROGERS,

CIRCUIT JUDGE

REVERSED

Appellant, Carol Ann Small, is the widow of the decedent, Daniel Harry Small, and the executor of his estate. She and Mr. Small were married for fifteen years and resided in Texas at the time of his death on March 13, 1998. On April 9, 1998, appellant filed an application to probate the will as a muniment of title in Smith County, Texas, which was the location of a portion of the real property owned by the decedent. On May 22, 2001, an order admitting the will to probate as a muniment of title was entered in Texas, and it contained not only the legal description of the real property located in Texas but also of the property located in Crawford County, Arkansas. By the terms of the decedent's will, all of his estate, including the Arkansas real property, was to go to appellant. Upon learning of this distribution of the Arkansas property, appellee, Stanley Small, who is one of the decedent's

sons, challenged appellant's right to the Arkansas property. Therefore, on June 5, 2001, appellant filed the underlying petition for ancillary administration of the estate of a non-resident to clarify her ownership of the Arkansas property. Attached to her petition was an authenticated copy of the Texas proceedings. On July 13, 2001, appellee filed a response to the petition, opposing it and asking that the decedent be determined to have died intestate with respect to the Arkansas property. The matter was tried on March 25, 2002, and in its order of May 20, 2002, the trial court found, inter alia, that the Texas order was not entitled to full faith and credit because Arkansas does not have a similar procedure; that appellant "participated in the procuring of the Will"; that the burden was on the proponent of the will to show that the decedent was competent and not acting under undue influence at the time he signed the will; and that based upon the evidence submitted, appellant did not meet her burden of proof. The court therefore concluded that the decedent died intestate for purposes of distribution of his Arkansas property and denied the petition for ancillary administration of the estate of a non-resident. We reverse.

Appellant raises two points of appeal. In the first point, she contends that the trial court erred in holding that the Texas probate of the will in question was not due full faith and credit. For her second point, appellant contends that the trial court erred in holding that she bore the burden of proof as to the testator's competence at the time of the execution of the will. We agree that the trial court erred in its assignment of the burdens of proof in this case. Moreover, because our resolution of the second issue requires reversal, it is unnecessary to address appellant's first point of appeal.

Arkansas Code Annotated section 28-40-120 (1987) provides in pertinent part:

Probate of will of nonresident.

(a) When a will of a nonresident of this state, relative to property within this state, has been admitted to probate in another appropriate jurisdiction, an authenticated copy thereof, accompanied by an authenticated copy of the order admitting the will to probate, may be filed for probate in this state.

(b) When so filed, together with a petition for the admission of the will to probate in this state, the court shall presume, in the absence of evidence to the contrary, that the will was duly executed and proved and admitted to probate in the foreign jurisdiction and shall admit the will to probate if it appears from the copy and order that the will was executed and proved in the manner prescribed by the law of the place of its execution, or by the law of the testator's domicile at the time of its execution, or by the laws of this state.

(Emphasis added.) Appellant lost the benefit of the statutory presumption under subsection (b) above when appellee challenged the admission of the will to probate in Arkansas, contending, inter alia, that the will was executed in Texas under suspicious circumstances. The matter was then addressed at the March 25, 2002 hearing.

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 v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999).

Here, appellant introduced Mr. Small's death certificate; a certified copy of his will; the evidentiary deposition of Richard Busch Patteson, the attorney who prepared and witnessed the will; and the evidentiary deposition of Charles J. Spradlin, the other witness to the will. She testified that she and the decedent were married on February 22, 1985, inTyler, Texas, and that they lived there until his death on March 13, 1998. She explained that her husband had leukemia and was in the hospital at the time the will was executed. She stated that on February 10, 1998, her husband picked Richard Patteson's name out of the phone book and asked her to call him, which she did, but that she had never dealt with this attorney before. She said that she asked Mr. Patteson to come to the hospital and prepare a will; that Patteson came the next morning, February 11, and returned that afternoon with the will, at which time it was executed. She testified that she thought her husband was thinking clearly and that she had no reason to believe that he did not know what he was doing. She explained that he died thirty-seven days after he executed the will and that he was alert until the last four days. She stated that it was her husband's wish that she retain and care for the property in Arkansas until her death and then have it pass through her own will to his children. A partial medical record was introduced over appellant's objection, which notes that at 5:30 a.m. on February 16, 1998, five days after the will was executed, Mr. Small was, "Awake. Confused." In allowing the exhibit, the trial court commented that "it doesn't have a lot of bearing but it is at least near the time."

Richard Patteson testified that he had not had professional contact with the Smalls prior to preparing Mr. Small's will. He said that he visited with Mr. Small alone when he arrived at the hospital to make sure that the provisions they discussed on the phone were as Mr. Small wanted them. He explained that when he was sure the provisions were what Mr. Small wanted, he allowed other family members to return to the room, and the will was executed along with a durable power of attorney for health care and a durable general powerof attorney. He recounted the formalities of the execution, which included Mr. Small's declarations that he intended the document to be his last will and testament, his initialing of each page; his signing of the will in the presence of the two witnesses and the notary public; the witnesses' signing of the will; and the signing of the self-proving affidavits. Patteson stated that Mr. Small was very lucid, seemed to understand the contents of the will, and expressed contentment with the way it was drawn up. He said that Mr. Small was in bed, mentally alert, did not seem ill, and did not seem feeble. He also testified that the muniment of title procedure in Texas is considered probate.

Charlie Spradlin, the other witness to the execution of the will, testified that he had known Mr. Small for two to four years prior to his death and that he was asked by Mr. Small to be a witness to his will. He said that their relationship was business oriented. He testified that Mr. Small appeared to be of sound mind and acting of his own accord. He stated that Mr. Small did not seem close to death, talked the way he always did, and seemed to be in good spirits. He said that Mr. Small told him that he loved his wife and that she was the best thing that ever happened to him and that he wanted her to have everything that he had in this world.

We find that this evidence was sufficient to satisfy appellant's burden of proving that the will was rational on its face and was executed and witnessed in accordance with testamentary formality. As the party challenging the validity of the will, it then became appellee's burden to prove by a preponderance of the evidence that the will was invalid. One way that he attempted to do so was to try to show that appellant procured the will. Inits May 20, 2002 order, the trial court found that appellant "participated in the procuring of the Will." It is not clear from the order whether the trial court was using the term "procurement" in its technical sense. It is clear, however, that the court placed the burden on appellant to show that the decedent was competent and not acting under undue influence at the time he executed his will. Either way, we hold that the trial court erred in placing that burden on appellant because (1) the evidence does not support a conclusion that appellant procured the will in its technical sense, and (2) without such a showing, the burden should have remained with appellee to prove that the will was invalid.

A rebuttable presumption of undue influence arises in cases where the beneficiary of a will procures the making of the will. Hodges, 68 Ark. App. 170, 5 S.W.3d 89 (1999). A beneficiary procures a will, thereby causing the rebuttable presumption of undue influence to arise, by actually drafting it for the testator. Id. A beneficiary also procures a will by planning the testator's will and causing him to execute it. Id. However, a beneficiary who is merely present when a will is drafted does not, by his presence, procure the will. 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, appellee testified that he was present at the hospital on February 11, the day his father executed the will. He said that when he arrived, appellant told him that his dad might not be able to recognize him after dialysis. He testified that she told him his dad was going to have a will made with the Texas property to go to her and the farm in Arkansas to go to his three kids. He said that when the lawyer came into the room, his father told the lawyer the same thing. He stated that the lawyer then asked everyone but appellant, his father, and Charlie Spradlin to leave so that he could explain something to Mr. Small. He said that his father read well but that he could not understand big words unless they were explained to him. He expressed his belief that his father did not understand the will because he had just come out of dialysis and was very confused. He testified that he has had a chance to read the will and that it did not do what his father wanted.

Leota Small testified that she was Harry Small's former wife and the mother of his children. She stated that he told her that he intended for the Arkansas property to go to their three children.

On recall, appellant testified that her husband entered the hospital on February 4, and signed the will seven days later; that he read the will thoroughly and that she did not detect any confusion; and that there had been confusion the very first time that he had dialysis but never any after that.

Michael Small, appellee's brother, testified that he was present at the hospital before his father signed the will. He first stated that his father did not appear confused, just upset and nervous and scared, but then stated, "I mean he was confused." He said that his fatherwas upset, irregular, "he was wanting to get a lawyer down there to get his will and he was wanting to make sure everything was fixed." Michael stated that he did not know if his father understood how much money he had in his checkbook, that his father knew what kind of car he was driving, and that his father recognized him. He testified that his father was not his typical self, that his father was confused, that his father would be talking and "he would just sort of act like he was mad and start wanting to know where his lawyer was." He said that his father would jump around from thought to thought, that his father was upset and agitated on that day, and that "there was nothing different that I know of other than him being confused." Michael stated that his father called him aside and told him that he was going to leave to the kids [the Arkansas property] and Carol the place in Texas; that he was going to leave the Arkansas property in Carol's name so that she could take care of the taxes where they would not have to worry about it; that they could use the place as they wanted; that Carol would check on the place; and that if they ever needed any help, Carol would help them. Michael acknowledged that he never told his dad he was not in any condition to make a will.

This evidence simply does not establish in any fashion that appellant procured the will. Therefore, the burden never should have shifted to her to prove that Mr. Small was competent and under no undue influence at the time he executed his will. Moreover, appellee clearly did not satisfy his burden of proving that his father lacked the requisite mental capacity or that he acted under undue influence.

Although probate cases are reviewed de novo on appeal, we will reverse a probate court's determination on the 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). A probate court order is clearly erroneous if it is clearly against the preponderance of the evidence. Hodges, 68 Ark. App. 170, 5 S.W.3d 89 (1999). A probate court's finding of fact is clearly erroneous when, although there is evidence to support the fact found, the appellate court, on reviewing the entire evidence, is left with a definite and firm conviction that the probate court erred. Id. We defer to the superior position of the probate judge to determine the credibility of witnesses and the weight to be accorded their testimony. Id.

It has long been the law in Arkansas that a party challenging the validity of a will must typically prove by a preponderance of the evidence that the testator lacked the requisite mental capacity or that the testator was the victim of undue influence when the will was executed. Pyle, 344 Ark. 354, 39 S.W.3d 774 (2001). Our supreme court has often stated that the questions of testamentary 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 testator 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 testator was impaired either by some inherent defect or by the consequences of disease or advancing age. Id.

It is true that every person of sound mind and disposing memory has the untrammeled right to dispose of his or her property by will as he or she pleases. Id. This means that if the maker of a will has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property and to comprehend how he is disposing of it, to whom, and upon what consideration, then he possesses sufficient mental capacity to execute the will. Id. This court has frequently observed that the relevant inquiry is not the mental capacity of the testator before or after a challenged will is signed, but rather the level of capacity at the time the will was signed. Id.

As for undue influence, our supreme court has stated:

The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property.

Id. at 360, 39 S.W.3d at 778 (quoting Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955)).

Our supreme court has long held that, with respect to a will obtained by influence, it is not unlawful for a person, by honest intercession and persuasion, to procure a will in favor of himself, or another person. Id. Whether the disposition was a natural one is a relevant inquiry. Id. 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 testator. Id.

Here, at the conclusion of the testimony, the trial court expressed its own doubts about the sufficiency of the evidence to show a lack of competence:

THE COURT: If he was competent and understood what he was doing, this Will must stand. I need something that would show to the contrary or if there is sucha thing as over reaching, or if there is any undue influence or something, but I don't know that there's a lot of evidence of undue influence here. I haven't heard it and haven't heard that much that he's incompetent. I recall the older boy saying that he was confused after dialysis but he did sign this an hour later and so it's pretty iffy about how much confusion he had. I think this is a difficult case because I think he has a right to do what he has done if he's competent.

Our review of the entire evidence leaves us with the definite and firm conviction that the probate court erred in denying the petition for ancillary administration of the estate of a non-resident and concluding that the decedent died intestate for purposes of distribution of his Arkansas property. Rather, we hold that the Arkansas property passed under the terms of Mr. Small's will to his surviving spouse, the appellant.

Reversed.

Robbins and Crabtree, JJ., agree.