Irvin Benton Robinson v. Ronald Wallace, Individually and as Executor of the Estate of Alice Robinson

Annotate this Case

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-245

DIVISION IV

CA05-245

October 26, 2005

IRVIN BENTON ROBINSON AN APPEAL FROM WHITE COUNTY

APPELLANT CIRCUIT COURT

v. [No. PR 2003-88-3]

RONALD WALLACE, HONORABLE CRAIG T. HANNAH,

Individually and as Executor of the CIRCUIT JUDGE

Estate of ALICE ROBINSON

APPELLEE AFFIRMED

Robert J. Gladwin, Judge

This appeal concerns the validity of a will executed by the decedent Alice Robinson in October 2000. Her son, appellant Benton Robinson (Ben), now appeals from the judgment of the White County Circuit Court rejecting his contest to the validity of the will. In challenging the will, Ben argued to the trial court (1) that appellee Ronald Wallace procured the will; (2) that Alice was not competent at the time of its execution; and (3) that Alice was subject to undue influence. We find no error, and we affirm.

At the time of execution of the will, Alice's husband had predeceased her and she had two sons, Jimmy Robinson and Ben. The will specifically left nothing to Ben. Ronald Wallace, Alice's friend for several years preceding her death, was devised Alice's real property and $50,000. Wallace was also appointed executor under the will. A vehicle and the residue of the estate were bequeathed to Jimmy.1 Alice died in April 2003, and her will was admitted to probate on June 2, 2003.

The trial court heard the testimony of attorney Robert Hudgins concerning the drafting and execution of the will. In June of 2000, Alice went to Robert Hudgins's office and asked that he prepare for her a durable power of attorney naming Wallace and a new will. On this first trip, Wallace drove Alice to the appointment. Hudgins denied that Wallace attempted to discuss the contents of Alice's will, other than to indicate that he did not want anything left to him. In October 2000, Hudgins prepared a second will for Alice identical to the first will except for a bequest of $50,000 to Wallace instead of Jimmy. On October 30, Alice was brought to the law office by her housekeeper, Vicki Duncan, and she executed the will.

Hudgins testified that, during his meetings with Alice, he took detailed, extensive notes in anticipation of a later will contest because of her sons' treatment in the will. During the trial, Hudgins relied in part on the notes when he testified that Alice knew the extent and conditions of her property and understood how she was disposing of it and to whom and under what condition. He observed that Alice was always mentally alert and competent, was appropriately dressed, and appeared to be a person who observed good personal hygiene. Hudgins stated that Alice was strong-willed and not the type of person to be influenced by other people. It was his opinion that neither Wallace nor anyone else exercised any undue influence over Alice in the execution of her wills.

Dr. Bob Gale, a forensic psychiatrist at UAMS and a non-practicing attorney, stated that his review of Alice's extensive medical records showed that she suffered from dementia, diagnosed in 1998; a cardiac condition requiring a pacemaker; orthopedic problems including a broken hip and chronic pain; both breast cancer and lymphoma; and depression, noted frequently since 1995. Further, he was of the opinion that these impairments combined to produce a substantial degree of cognitive and affective impairment so as to render Alice more susceptible and vulnerable to external undue influence. However, he did not render an opinion as to Alice's specific competence to make a will on October 30, 2000.He also noted that the records indicated that Alice was hospitalized for almost two weeks in October 2000, just prior to her execution of the contested will.

Attorney Randall Wright testified that he represented Alice in 2000 in connection with Ben's having invested her money at Smith Barney brokerage. He said that Alice wanted more control because she was only receiving $300 to $800 per month, instead of the $1,100 to $1,400 per month she wanted. He also said Alice was upset because the investment account was used to collateralize a loan to Ben and his wife. Wright testified that he was able to have the Smith Barney account released from the collateral agreement and that Alice transferred the funds to a bank in Searcy. He stated that Alice never accused Ben of stealing the money.

During his meetings with Alice, Wright stated that Wallace was sometimes present and that Wallace sometimes received copies of correspondence sent to Alice. He also stated that Alice mentioned that either Ben or her then-attorney, Watson Bell, wanted her to go to the doctor and have a durable power of attorney in favor of Ben prepared. He stated that Alice did not want the power of attorney. Wright stated that Alice was afraid of being placed in a nursing home and that Wallace was not present when she disclosed this fear. He also recalled that Alice's health was not fragile and did not prevent her from communicating or meeting with him. He described Alice as rational and reasonable. While she may not have had a full understanding concerning the loan and investment account, Wright said that, to the extent she did have an understanding, it was rational.

Dr. Greer Sullivan, a professor of psychiatry at UAMS and a close personal friend of Wallace's, stated her opinion, based on personal observations of Alice and a review of the medical records, that Alice knew the objects of her bounty and the nature and extent of her estate at the time of the execution of the contested will. She stated that, although she did not conduct a formal mental status exam on Alice, she discounted a 1998 diagnosis of dementiabecause there was never a formal dementia work-up done, as there would have been if there had been a serious problem with dementia. She noted that Dr. Donald Birmingham, a psychologist, did not mention dementia in the records when he saw Alice in October 2000 after she was hospitalized for a broken hip. Dr. Sullivan stated her belief that the dementia was a result of vascular problems such as a stroke and a series of transient ischemic attacks Alice suffered in the mid 1990s, which later disappeared. She also opined that Alice did not suffer from either chronic or major depression. She allowed that Alice may have periodically suffered from depression and that it was possible that it affected her mental status; however, she doubted that it affected Alice's judgment. She stated that she did not notice any major deterioration in Alice's mental status until 2002, after Alice suffered another stroke.

Patricia Hames, Ben's wife and an occupational therapist and disability analyst, testified as to a series of unusual behaviors on Alice's part. These included a July 1999 incident when she and Ben found Alice, normally a good housekeeper, living in her bed with the rest of the house a mess. After that, Hames said that she and her husband offered to hire a housekeeper for Alice. She related a second incident from Thanksgiving 1999, when Alice had been staying with them in Little Rock but immediately after the Thanksgiving dinner wanted to be taken back to her home. Hames also testified as to several incidents occurring during that same Christmas season, including Alice's giving a "raspberry" to her doctor, Dr. Asmar, and Alice walking around the house completely naked and becoming angry when Hames suggested that she put a robe on.

Hames testified that she and her husband became estranged from Alice in early 2000 after receiving a letter from Alice's attorney. She accused Wallace of blocking access to Alice and stated that there were no further phone calls or letters except for a call on Mother's Day. She also said that Alice did not attend Jimmy's funeral. She admitted that Wallace called to inform them that Alice was hospitalized with a broken hip. However, she stated thatthey were notified of Alice's death by an attorney and that the family was not involved in making the funeral arrangements.

According to Hames, she did not discuss Alice's financial affairs with her in 2000, nor did she know that Alice executed a durable power of attorney and two wills in that same year. She stated that she considered Alice's guaranty of the loan as a mere formality because Alice would not have lost any money. However, she did acknowledge that Alice gave up some control over her money when she pledged it as collateral for the loan. She also stated that it did not occur to her that some of Alice's hostility toward her during Christmas 1999 was the result of Alice's feeling that she had lost control of her money.

Ben Robinson testified that, after his father died in 1985, Alice was despondent for almost two years. He stated that, in approximately 1998, Alice began acting in a strange manner, describing her as living in a cave with the drapes drawn and confining herself to her bedroom. He denied knowing that Alice was recording her telephone calls during Mother's Day 2000. He said that Wallace cut Alice off from her family and pointed to such events as Wallace not allowing him to visit with his mother in private while Alice was in the hospital in October 2000. Ben admitted that Wallace had called to inform him that Alice had broken her hip. However, he said that he did not receive such a call from Wallace following Alice's death.

Ben stated that, in 2000, Alice accused him of stealing her money at Wallace's instigation. He stated that this led him to cease contact with his mother because he feared losing his job as a financial consultant at Smith Barney. He also pointed out that he did not have any control over Alice's funds after 1997. He said that, despite the pledging of her account for the loan, Alice always had access to her funds and, in fact, made several withdrawals from the account.

Raymon Harvey, an attorney in Little Rock, testified that he met Alice in September 2002 for financial planning. He said that Wallace, not Alice, made the first contact. He said that he met with Wallace and described Wallace as acting under the power of attorney. They discussed setting up a trust or conservatorship for Alice, who was at Baptist Rehabilitation Hospital, but Harvey denied that Wallace suggested the conservatorship. He described Wallace's motivation for the appointment as Alice's will. Harvey stated that Wallace believed that there was a will but that he did not have it or know where it was. He also described Wallace as ready to have someone else make decisions for Alice. He also made a note concerning a discussion about Ben stealing Alice's money. He stated that he met with Alice in the hospital and that Wallace was not present for the discussions. He described Alice as being able to tell him what she wanted. He also said that, although Alice was frail and in a wheelchair, he did not believe she was incapacitated.

Vicki Duncan was Alice's housekeeper from August 1999 until Alice's death. She stated that she did not meet Ben until Alice was hospitalized with a broken hip in October 2000. She related an incident during Christmas 1999 when Ben made a comment that, if Alice did not keep her house and refrigerator clean, she was going to be placed in a nursing home. Duncan said that this upset Alice. She testified that she helped Alice pay her bills, not because Alice could not do so, but because Alice did not want to do so herself, noting that Alice carefully reviewed each check before signing it. Duncan also stated that Alice was upset because Ben had control of her money. She denied that Wallace had anything to do with Alice's wanting to regain control of her money or that she was concerned that Wallace would influence Alice.

Ronald Wallace described meeting Alice in January or February 1999 when Alice stopped in his family's antique shop. He said Alice started to talk about personal issues such as her son Ben controlling her Smith Barney account but that he did not feel it was hisbusiness. He said that she brought it up several times before he finally agreed to help. He said that she believed that Ben and her doctors were questioning her competency, which upset her. He also said that she made a comment about Ben's putting her in a home because of her dirty house. He said that he suggested that Alice call attorney Randall Wright about getting her money from Ben.

Wallace said that Alice's staying in her own home was very important to her. He denied trying to isolate Alice from her friends, stating that the telephone monitoring device was Alice's idea after receiving a solicitation call.

Wallace described Alice's mental state as clear in the fall of 2000. He also denied that he wrote checks to himself from Alice's account or that he had done anything improper with her estate. He also denied wanting any gifts from Alice. He admitted using the power of attorney when she broke her hip in 2000. He also denied knowing that he was a beneficiary of Alice's will until shortly before her death.

Dr. Bill Tranum, Alice's oncologist, stated that he examined Alice on November 2, 2000, three days after the execution of the will and that, in his opinion, Alice knew the nature and extent of her estate. At that time, he noted that Alice was appropriately dressed, alert as to the events surrounding her, and not agitated or confused. He stated that he was aware that Alice was taking anti-depressants. Dr. Tranum also stated that Wallace was present at nearly all visits, acting as her caretaker, and that he acted on Wallace's statements concerning Alice. However, he also stated that he did not observe Wallace act against Alice's interest or exert controlling influence over her. He stated that, on occasion, Wallace had Alice transferred from the emergency room in Searcy to Little Rock because of the greater array of doctors in Little Rock. Dr. Tranum stated that his relationship with Alice started in July 1999, when he saw her for a short period for anemia. He then saw Alice on a regular basis from November 2000 until March 2003 for treatment for lymphoma and breast cancer. He noted signs ofmental deterioration from November 2000 until March 2003 but said that it did not get noticeably worse until 2002.

Dr. Donald Birmingham, a psychologist, testified that he saw Alice while she was hospitalized following a broken hip in October 2000. He diagnosed Alice as suffering from an adjustment disorder with a depressed mood secondary to her disability and family stress. He admitted that this was different from major depression. Birmingham attributed some of the situational depression to Alice's lack of independence following her broken hip and to the family stress with Ben. He described Alice as well motivated and receptive to his treatment but noted that Wallace felt threatened by the treatment and wanted Alice to see a psychologist in Little Rock. He stated that this led him to conclude that Wallace was in charge of Alice's affairs. However, he also noted that he did not make a recommendation that Alice continue counseling after her discharge from the hospital.

The trial court found that Alice had the requisite capacity to execute the will and that the will was properly executed. Also, the trial court found that Wallace did not procure the execution of the will or exercise undue influence over Alice. The court supported its findings with references to specific facts and testimony. The trial court also refused to shift the burden of persuasion to Wallace to prove beyond a reasonable doubt that the will was not the product of undue influence. Instead, the court placed the burden on Ben and utilized the preponderance-of-the-evidence standard. Ben filed a motion to alter or amend the judgment, arguing that the court's findings were against the preponderance of the evidence. The trial court denied the motion. This appeal timely followed.

Ben argues three points on appeal: that the trial court erred in failing to find that Wallace procured the will; that the trial court erred in failing to shift the burden to Wallace to prove beyond a reasonable doubt that the will was not the product of undue influence; and that the trial court erred in failing to find that the will was the product of undue influence.

We review probate matters de novo but will not reverse probate findings of fact unless they are clearly erroneous. Remington v. Roberson, 81 Ark. App. 36, 98 S.W.3d 44 (2003). A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed. Id. We also defer to the superior position of the trial court to weigh the credibility of the witnesses. Id.

In his first point, Ben argues that the trial court erred in failing to find that Wallace procured the making of Alice's will. Notwithstanding testimony that Wallace was not present and did not discuss the contents of Alice's will and that he drove Alice to the attorney's office one time, Ben argues that Wallace did, in fact, procure the will. However, a beneficiary who is merely present when a will is drafted does not, by his presence, procure the will. See Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).

Apparently "procurement" originally meant that the beneficiary himself wrote the will. McDaniel v. Crosby, 19 Ark. 533 (1858); see also Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992); Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Estate of McKasson v. Hamric, 70 Ark. App. 507, 20 S.W.3d 446 (2000). It has been extended to situations in which the beneficiary caused the will to be prepared and participated in its execution. See, e.g., Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980). Procurement was also found where the beneficiary held the decedent's power of attorney and directed the will to be written. Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955); In re Estate of Garrett, 81 Ark. App. 212, 100 S.W.3d 72 (2003). There was no proof that Wallace did more than drive Alice to her first meeting with Hudgins. This is not enough to prove procurement. We cannot say that the trial court's decision finding no procurement was clearly erroneous.

Ben next argues that the trial court erred in not shifting the burden to Wallace to prove beyond a reasonable doubt that the will was not the product of undue influence. 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. See Rose v. Dunn, supra. We need not address this point because we affirm the trial court's finding that Wallace did not procure the will.

Finally, Ben's third point is that the trial court erred in not finding that Alice's will was the product of undue influence. Whether undue influence occurred is a question for the trier of fact. Jones v. Balentine, 44 Ark. App. 62, 866 S.W.2d 829 (1993); Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987). Cases involving undue influence will frequently depend on the credibility of witnesses. Higgs v. Estate of Higgs, 48 Ark. App. 148, 892 S.W.2d 284 (1995). The argument is subdivided into several parts.

Ben first argues that Alice was susceptible to undue influence. The trial court found that Ben's contention that Alice lacked capacity to make the will was supported only by isolated events. The court also found that Ben produced no credible evidence as to Alice's competency, while Wallace did. Further, the trial court found that Alice's medical records did not contain any medical notes of any significance indicating depression that would render Alice profoundly or chronically disabled as of the time of execution of the wills.

The argument is essentially that the trial court should have given greater weight to Dr. Gale's testimony than it did to the testimony of other witnesses. We defer to the superior position of the probate judge to determine the credibility of witnesses and the weight to be accorded their testimony. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999). Further, old age, physical incapacity, and partial eclispse of the mind will not invalidate awill if the testator had capacity to understand the making of the will on date it was made. Hodges, supra. The medical testimony in this case conflicts regarding Alice's lack of capacity. Dr. Gale is the only medical expert to opine that Alice lacked capacity. The trial court could have properly given greater weight to the testimony of Dr. Sullivan and Dr. Tranum because they used their personal observations of Alice in arriving at their opinions as to her competency. Dr. Gale did not have this opportunity. Further, Dr. Birmingham noted that Alice suffered from "adjustment disorder with depressed mood," which he admitted was different from a major depression.

In another argument that Alice lacked the capacity to execute the will, Ben relies on a pattern of unusual behavior by Alice as recounted by him and his wife, Pat Hames. However, Hames admitted that Alice was estranged from her family beginning in early 2000 and that Hames did not see Alice after that time. Therefore, this series of incidents cannot be used to say that Alice specifically lacked capacity to execute the will on October 30, 2000. Our law is clear that despite any mental impairment, the testator may execute a will if he is experiencing a lucid interval. Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992).

Ben next points out several events that he contends support a finding of undue influence.

It is well settled that influence, consisting of appeals, requests, entreaties, arguments, flattery, cajolery, persuasion, solicitations, or even importunity is legitimate and becomes "undue," so as to invalidate the will, only when it is extended to such a degree as to override the discretion and destroy the free agency of the testator. Edwards v. Vaught, 284 Ark. 262, 681 S.W.2d 322 (1984); Hodges, supra.

Relying on the testimony of Patricia Derrick and others that they were cut off from contact with Alice, Ben argues that this was a result of Wallace's undue influence. However, both Sue Wiseman and Vicki Duncan testified that Alice told them that she cut off contactwith Derrick because Derrick and another person were driving Alice crazy. Although Alice's niece Molly Sims testified that she was prevented from visiting prior to Alice's death, she stated that she stopped going because she was not needed to assist Alice and gave no firm date as to when she was "cut off." Coy Benton, who was related to Alice's late husband, testified that he stopped visiting Alice because he, too, felt that he was not needed to assist Alice and that he had no problem communicating with her despite the call-blocker.

Ben also argues that the resulting will shows that it was obtained by undue influence because Wallace obtained a significant amount of property while he was totally excluded from his mother's estate. A testator's decision to favor a person with whom the testator had developed a close and affectionate relationship is not, of itself, proof that the favored beneficiary procured the will by undue influence. Reddoch v. Blair, 285 Ark. 446, 688 S.W.2d 286 (1985). Whether the disposition was a natural one is a relevant inquiry. See Abel v. Dickinson, supra. The testator may also take into account, when considering his duties to relatives, past neglect, indifference, estrangement, and the like. Werbe v. Holt, 218 Ark. 476, 237 S.W.2d 478 (1951); Parette v. Ivey, Ex'r, 209 Ark. 364, 190 S.W.2d 441 (1945). There was testimony that Alice had strained relationships with her sons dating back many years. Alice's reconciliation with Jimmy prior to his death is reflected in Alice providing for Jimmy and his children in her will. However, no such reconciliation was effected with Ben. We cannot say that the trial court was clearly erroneous in not finding undue influence based on the result of the will.

Ben also relies on the fact that Wallace held Alice's power of attorney and that this established a confidential relationship between them. Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995). However, the court in Dent went on say that, even in fiduciary relationships, it has refused to find undue influence in the transfer of property when there has been no showing that the donees said or did anything to put the donor in a position of fearor that they committed fraud on her or overreached her in any way. Ben offered no such proof; therefore, we affirm.

Affirmed.

Robbins and Baker, JJ., agree.

1 Jimmy died prior to Alice, leaving two children. Under the provisions of Alice's will, the children were to equally share in his portion of the estate.