Sandra S. Ray, Peggy Burns-Rappold, Judy A. Lange, Becky J. Spain, and Patrick C. Burns v. Kent Joseph Burns

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

SANDRA S. RAY, PEGGY BURNS-RAPPOLD, JUDY A. LANGE, BECKY J. SPAIN, and PATRICK C. BURNS

APPELLANTS

V.

KENT JOSEPH BURNS

APPELLEE

CA 03-213

SEPTEMBER 17, 2003

APPEAL FROM THE FAULKNER

COUNTY CIRCUIT COURT

[NO. PR 99-58]

HONORABLE CHARLES EDWARD CLAWSON, JR., JUDGE

AFFIRMED

John B. Robbins, Judge

This appeal concerns the validity of a will. Appellant Sandra Ray and appellee Kent Burns are two of the eight living children of the decedent, Mrs. O'Connor. O'Connor died on January 12, 1999, at the age of 72. On February 16, 1999, Sandra petitioned for the probate of a will executed by O'Connor in 1974, acknowledging the existence of a will executed in 1991 but asserting that the 1991 will was invalid due either to O'Connor's mental incapacity or because it was executed under the undue influence of Kent, O'Connor's youngest living child who lived with O'Connor. After hearing the respective parties' positions, the trial court entered the 1991 will to probate. From this decision comes the present appeal. Sandra argues that the trial court erred in (1) finding that she had not sustained her burden of proof on lack of testamentary capacity or on exertion of undue influence in the execution of the 1991 will, and (2) failing to rule that Kent had procured the will so as to shift the burden of proof to him. We affirm.

O'Connor executed a will in 1974 devising the entirety of her estate to her husband unless he predeceased her, and in that case, leaving the residue of her estate to her children, share and share alike, with the exception of one child who was specifically named and excluded. O'Connor's husband died sometime in the early to mid 1980s, the date being subject to some disagreement. Thereafter, O'Connor lived on her farm property in Conway, and various relatives checked on her from time to time. Her youngest son, appellee Kent, who was then in his twenties, came to live with her in approximately 1985 and remained there through his mother's death in 1999. On May 24, 1991, O'Connor executed a will giving bequests of a clock and certain jewelry to specific children and a grandchild, and leaving the residue to Kent, again disinheriting the one child as had been done in 1974. The residue of her estate consisted of the house in which she and Kent lived, the barn, and approximately 140 acres. According to the 1991 will, if Kent predeceased her, the residue of the estate would pass to the remaining children to share and share alike, with the exception of the disinherited child.

The thrust of Sandra's argument was that her mother had always planned to divide the farm land evenly among seven children, that this was outlined in the 1974 will, that Kent had excluded the family from seeing their mother in the last few years of her life, that their mother had suffered a significant mental decline in the years prior to her death, and that Kent had unduly influenced her decision to change her will to give the entirety of the farm to him. Kent flatly denied these allegations, asserted that he had discouraged his mother from devising the farm to him, and testified that he respected her wishes to dispose of her property as she wanted.

The parties presented their respective witnesses, and we examine their testimonies beginning with appellants' presentation. Amanda Spain, a granddaughter, testified that she spent summers with her grandmother and related that in 1991, when she was about fourteen years old, she recalled how forgetful her grandmother was. Two other granddaughters, Shawna Holden and Tracy Woodson, also stated how forgetful their grandmother had become by the late 1980s and early 1990s, especially in trying to remember who each of them were. Amanda's mother and O'Connor's daughter, Becky Burns Spain, testified that her mother's memory began "to go" in the mid-1980s after her stepfather passed away in 1984. Becky recalled that her mother could not remember who Becky was when she would visit, but Becky said that her mother talked about evenly dividing the farm land among her children, specifying that Kent's portion should include the house, the barn, and access to the driveway.

An emergency room physician, Dr. Thronebury, testified that he saw O'Connor once in March 1991 and that he recorded noticeable memory problems, which he attributed to depression. Dr. Thronebury stated that he would not agree she had Alzheimer's disease at that point because in July 1992, O'Connor had a brain scan that was clear. Dr. Thronebury would not opine whether O'Connor had mental capacity to execute a will on May 24, 1991. O'Connor's family physician, Dr. Furlow, testified that he had treated O'Connor for years. He noted that O'Connor had a long history of depression, what would now be considered bipolar disorder, and high blood pressure. He regulated her medications as best he could to keep her depression in check, but he was not always successful. He opined that her dementia began somewhere around 1989 to 1990, and he had her enter Bridgeway (a mental hospital) on July 10, 1991, where she stayed until August 2, 1991, for what he called a psychotic break. After this episode, he said she had a serious cognitive decline. Dr. Furlow explained that in the spring of 1991, O'Connor's ability to remember and function at a higher level was poor and that she was "compromised," meaning she would have been vulnerable to being taken advantage of. Nevertheless, he said that people fluctuate and that she may have been totally competent to execute a will on May 24, 1991. Without having seen her on that date, he could not give an opinion about her competency.

Sandra testified that her mother could not take care of herself by 1991, and that by 1995 Kent had excluded her family altogether, avoiding their telephone calls and visits. Sandra said that her contact with her mother was limited in the last few years of her life, but that when she did speak with her, it was obvious that her mother could not remember who appellant was. Another daughter, Peggy Burns Rappold, said that after her stepfather died, she regularly came to the farm to clean her mother's house, and she noticed her mother's memory faltering around 1989.

Kent presented the testimony of the two legal secretaries who witnessed the execution of the May 24, 1991 will. Marilyn Ruple said that O'Connor had been to the law office over the years on various matters, that O'Connor appeared competent to her on that date, and that had she believed that O'Connor exhibited anything to cast doubt on her competence, she would have made notes to that effect. Faye Conville testified that she had seen O'Connor in the law office eight to ten times over the years and that she seemed competent and free from undue influence at the execution of the will.

A grandson, Richard Rappold, testified that he believed his grandmother to be of sound mind until the last year or two prior to her death. A couple who were neighbors of O'Connor since 1989, Bill and Kathy Grace, testified that they often saw O'Connor and that she seemed very mentally capable until sometime after 1993. Kathy said that she took walks with O'Connor on several occasions, that O'Connor repeatedly told her that Kent should get the farm because Kent was with her day and night, that O'Connor knew what she was doing in 1991, and that O'Connor did not get "bad" until about a year and a half before her death. The Graces denied that they had any interest in the outcome of the proceedings.

Kent's former girlfriend, Patty Koonce, testified that she remained friends with Kent and recounted spending time with O'Connor. Patty remembered O'Connor saying in 1985 that Kent should get the farm because he was the only one who cared for the farm like she (O'Connor) did, and later saying that Kent should get the farm because he took care of her. Patty said that O'Connor began to suffer from confusion around 1995 or 1996.

O'Connor's oldest son Michael Burns testified that he no longer had contact with his extended family because he blamed his mother and sisters for his divorce and that there was general stress around relations with his sisters. Michael maintained contact with Kent and another brother. Michael said he had discussions with his mother about what to do with the farm after his father's death in 1961. Michael felt that his mother pressured him to tell her what to do but that he would not make the decision for her. Michael explained that he made clear to his mother many years before that he (Michael) was not a farmer and did not want the farm. Michael testified that O'Connor later told him that she had finally settled in her mind that she wanted Kent to have the farm, which he thought was in 1982. Michael had not talked to her since then.

Kent testified that he was forty-four years old, that he moved back in with his mother in approximately 1985, that she only needed emotional support at that time because she did not want to be alone, that she began to need assistance in her daily living by the mid 1990s, and that he cared for her extensively as she approached the end of her life. He said he did everything to keep from having to put her into a nursing home and that he did more for her than any of the other family members. Kent denied excluding other family members from seeing his mother and needed help with her care toward the end. Kent said he knew that his mother did not want to split up the farm and wanted him to have it, though he was not really comfortable with that idea and expected there to be discord over it.

The trial court questioned Kent about the day O'Connor signed the 1991 will. In response, Kent said that he accompanied his mother and aunt to the lawyer's office where the will was executed, but he could not recall if he drove, if he was in the lawyer's office or in the waiting room, or any other details about that day.

The trial judge found that "the testimony in this case is almost evenly balanced." Mindful of the evidence, the judge decided that Sandra bore the burden to establish undue influence or lack of testamentary capacity by a preponderance of the evidence, which she had not accomplished. This appeal resulted.

On appeal, probate cases are reviewed de novo; however, an appellate court will not reverse the trial court's findings unless they are clearly erroneous. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996). Due deference is given to the superior position of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony. Id. In a typical will contest, the party contesting 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. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992).

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. See Puryear v. Puryear, 192 Ark. 692, 94 S.W.2d 695, 696 (1936). This means that if the maker of a will 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, to whom, and upon what consideration, then she possesses sufficient mental capacity to execute the will. Richard v. Smith, 235 Ark. 752, 361 S.W.2d 741 (1962). 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. See Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774(2001); Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997); Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992). A testator'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. See Noland v. Noland, supra.

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. Noland v. Noland, supra. As for undue influence, the supreme court stated in Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955), as follows:

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.

225 Ark. at 510, 283 S.W.2d at 670. See also In re Estate of Davidson, 310 Ark. 639, 839 S.W.2d 214 (1992). 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. Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979). Whether the disposition was a natural one is a relevant inquiry. See Boggianna v. Anderson, 78 Ark. 420, 94 S.W. 51 (1906).

With these case precedents in mind, we cannot hold that the trial court was clearly erroneous to conclude that Sandra failed to persuade by a preponderance of the evidence that the will was executed without mental capacity or under the undue influence of Kent. This case relied exclusively on the weighing of testimony and making credibility determinations by the trial judge. The trial judge considered the various opinions of family members, neighbors, doctors, friends, and legal secretaries, and we defer to his sound judgment.

Sandra alternatively argues in her brief that the issue of procurement of the will "arose literally during last moments of testimony, when the court inquired about whether [Kent] took his mother to Attorney Clark's office and his whereabouts when the will was executed." Therefore, she asserts that the trial judge, by asking questions of Kent, raised the issue of procurement of the will and failed to make a ruling on that issue, which she asserts should shift the burden to Kent to validate the 1991 will. It is true that when the person benefitting from the will also engages in drafting or procuring the will, a rebuttable presumption of undue influence arises and creates a burden for the proponent of the will to prove beyond a reasonable doubt that the testator had both the testamentary capacity as well as the freedom from undue influence to execute a valid will. Pyle v. Sayers, supra. Sandra failed to raise this issue to the trial court or ensure that a ruling was made on that issue, and we do not address issues that are raised for the first time on appeal. Giles v. Sparkman Res. Care Home, 68 Ark. App. 263, 6 S.W.3d 140 (1999).

Even had she properly raised the issue, we see no evidence upon which to find that Kent procured the will. 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 required mental capacity and freedom of will. Hodges v. Cannon, supra. The only evidence about his involvement in the 1991 will was his accompanying his mother and aunt to the law office. A beneficiary who is merely present when a will is drafted does not, by his presence, procure the will. See, e.g., Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).

Affirmed.

Griffen and Neal, JJ., agree.