Connie Bell v. Merrie Hutchins, In the Matter of the Estate of Alvin R. Hutchins, Deceased
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DIVISION I
CA0778
CONNIE BELL
NOVEMBER 14, 2007
APPELLANT
APPEAL FROM THE UNION COUNTY
CIRCUIT COURT
[NO. PR20052776]
V.
MERRIE HUTCHINS, IN THE MATTER
OF THE ESTATE OF ALVIN R.
HUTCHINS, Deceased
APPELLEE
HON. DAVID F. GUTHRIE,
JUDGE
REVERSED AND REMANDED
Appellant Connie Bell appeals the June 28, 2006 judgment, of the Union County
Circuit Court, finding that the last will and testament of decedent Alvin R. Hutchins, dated
September 15, 2005, is invalid and setting aside the order admitting it to probate. Appellant
contends that the circuit court erred in finding that she procured the will and that she had
unduly influenced Alvin R. Hutchins to make the will. We reverse the circuit court’s finding
of procurement and remand for proceedings consistent with this opinion.
Mr. Alvin R. Hutchins lived in Arkansas for fifteen years prior to his death. During
that time, his daughter, who lives out of state, did not visit him, but Mr. Hutchins made it
known that his daughter would inherit all that belonged to him upon his death. Mr. Hutchins
hired appellant Connie Bell to be his housekeeper in early 2005 after he had suffered some
falls and had become too feeble to care for himself and his home. Mr. Hutchins did not own
a washing machine or dryer prior to his hiring appellant, but bought a set and had them
installed in appellant’s home in order that she might wash his clothes. Mr. Hutchins did not
drive, but after he hired appellant, he bought a brand new GMC pickup truck, which
appellant drove. Mr. Hutchins also loaned appellant money for a deposit and firstmonth’s
rent on a house.
According to trial testimony, these purchases and financial transactions were out of
the ordinary for Mr. Hutchins, who was said to have been frugal. His small house had no
running hot water and no toilet facilities indoors. A woodburning stove provided heat for
the house. However, it was established at trial that Mr. Hutchins was generous with his
church and helped people in need. Friends became concerned about Mr. Hutchins’s
spending when the washing machine, dryer, and truck were purchased.
Appellant made an appointment for Mr. Hutchins with attorney Teresa Wineland for
September 15, 2005. On that date, appellant drove Mr. Hutchins to Ms. Wineland’s law
office and waited in the truck. Mr. Hutchins asked Ms. Wineland to draft a new will, leaving
the washing machine, dryer, truck, and half of the remainder of his estate to appellant, with
the other half of the estate going to his daughter. After Mr. Hutchins executed the will,
appellant kept it in her possession.
Friends who picked Mr. Hutchins up for church on Sunday mornings testified that
appellant would help him get dressed for church. However, the last few Sundays of his life,
appellant did not help Mr. Hutchins get ready for church. On Sunday, October 2, 2005, Mr.
Hutchins was found on the floor of his home by a friend. He had apparently fallen and had
lain on the floor for several days. He was taken to the hospital where he died a week later.
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Three days after his death, appellant filed a petition to probate the September 15, 2005 will.
The will was admitted to probate on October 12, 2005, and a motion to contest the will’s
admission was filed on November 28, 2005, by Merrie Hutchins, Mr. Hutchins’s daughter.
After a hearing, the trial court found that appellant had procured the will, effectively
shifting the burden from the will challenger, Merrie Hutchins, to the proponent of the will,
appellant. Because of the finding of procurement, the trial court found that a rebuttable
presumption of undue influence arose and that the burden of proof was on the appellant to
prove beyond a reasonable doubt that the testator had both the testamentary capacity and the
freedom from undue influence to execute a valid will. The trial court found that Mr.
Hutchins had the mental capacity to execute the will on September 15, 2005. However, the
trial court found that, based upon the facts, appellant failed to rebut the presumption of
undue influence and declared the will invalid. This appeal follows.
We review probate proceedings de novo, but we will not reverse the trial court’s
decision unless it is clearly erroneous. Moore v. Sipes, 85 Ark. App. 15, 146 S.W.3d 903
(2004). A decision is clearly erroneous when the reviewing court is left with a definite and
firm conviction that a mistake has been made. Walker v. Torres, 83 Ark. App. 135, 118
S.W.3d 148 (2003). When reviewing the proceedings, we give due regard to the opportunity
and superior position of the trial judge to determine the credibility of the witnesses. Moore,
supra.
In a typical will contest, the party contesting the validity of the will has the burden
of proving by a preponderance of the evidence that the testator lacked mental capacity at the
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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). However, where a beneficiary under the
will actually drafts or procures the will, a higher burden of proof is applied under Arkansas
law:
In Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979), we held that the
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 it was not the result
of undue influence and that the testator had the mental capacity to make the will. We
again held in Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980), that where a
beneficiary procures the making of a will, “it is incumbent upon those who, in such
a case, seek to establish the will, to show beyond reasonable doubt, that the testator
had both such mental capacity, and such freedom of will and actions as are requisite
to render a will legally valid.”
Park v. George, 282 Ark. 155, 159, 667 S.W.2d 644, 647 (1984). See also Short v.
Stephenson, 238 Ark. 1048, 386 S.W.2d 501 (1965).
Appellant contends that the circuit court erred when it found that she procured the will
and thereafter shifted to her the burden to prove beyond a reasonable doubt that on
September 15, 2005, Alvin Hutchins had both the testamentary capacity to execute a valid
will and freedom from undue influence. She argues that under Looney, supra, she did not
procure the will, as procurement requires actually drafting the will for the testator or
planning the testator’s will and causing him to execute it. She maintains that there was no
evidence that she actually drafted the will or that she planned it or caused Mr. Hutchins to
execute it.
Appellee contends that the instant case is similar to Looney, wherein the
procurer of the will, Ms. Looney, was the administrator of the nursing home wherein the
elderly Ms. Wade resided. Ms. Wade feared that no one would care for her in her declining
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years. The court noted that the proponent of the will was Ms. Wade’s caregiver and that she
had a fiduciary duty to protect Ms. Wade and not to gain financially from her advanced age
and weakened physical condition. Appellee argues that, here, Mr. Hutchins relied upon
appellant as a cook and housekeeper, and rather than protect him, appellant took advantage
of him financially by helping him secure a will that favored her in derogation of all prior
representations as to what his natural disposition of his property to his daughter would have
been.
The circuit court found that appellant’s acts of procurement were that she was a
beneficiary under the will who called the lawyer’s office to make the appointment for Mr.
Hutchins, drove Mr. Hutchins to the appointment, and waited in the truck for him while he
kept the appointment. Further, appellant kept the will in her possession following the
appointment. The trial court did not find credible her testimony that she did not know the
content of the will or why the decedent went to the lawyer’s office.
Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984), is similar to the instant case, but
has a different result. There, Mr. Dunn drove the testator to the lawyer’s office and
participated in the initial discussions concerning making a will. However, the court held that
the testator freely and voluntarily executed his own will, and that Mr. Dunn did not procure
the making of the will. The court relied upon the case of Park, supra, in determining what
it means to procure a will, and stated as follows:
In the case of Park v. George, Pers. Rep., 282 Ark. 155, 667 S.W.2d 644 (1984), an
attorney who named himself as a beneficiary in the amount of $10,000.00 drew a will
for an 88 year old woman who had been hospitalized and sedated and who appeared
confused and upset. In the case at bar, Delma Dunn merely drove Mr. Pierce to the
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attorney’s office and participated in the initial discussions concerning making a will.
The court found that Mr. Pierce was possessed of both testamentary capacity and
freedom of will. Where a competent individual freely and voluntarily executes his
own will, it cannot be said that another procured the making of that will.
Rose, 284 Ark. at 47, 679 S.W.2d at 183.
Here, appellant merely called the lawyer’s office to make the appointment for Mr.
Hutchins. Subsequently Ms. Wineland, the attorney, contacted Mr. Hutchins personally to
make sure he wanted the appointment. Appellant was not present in the office when the will
was executed. Further, Ms. Wineland testified that Mr. Hutchins explained to her the
reasoning behind dividing his estate between his daughter and appellant. Ms. Wineland
stated that she was convinced that Mr. Hutchins had the proper mental capacity to do what
he did. Therefore, based upon Rose, we hold that the trial court erred in finding that
appellant procured the will and shifting the burden of proof to her.
Further, we hold that the trial court made a proper finding of testamentary capacity
as follows:
As to testamentary capacity, the testimony of Teresa Wineland, who prepared and
witnessed the Will, and Martha Kellum, the second witness, clearly established that
Alvin Hutchins possessed the capacity to execute the Will on September 15.
Decedent knew what he wanted to do, appeared coherent, and answered counsel’s
questions in a manner that indicated sufficient capacity on that day. The testimony
of Martha Kellum confirmed the observations and conclusions of counsel.
Once testamentary capacity is established, the question of whether the testator was unduly
influenced must be answered. We do not find error in the trial court’s finding that Mr.
Hutchins had the testamentary capacity to execute a will; however, because the trial court
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erroneously shifted the burden of proof to appellant, we reverse and remand for the trial
court to act consistently with this opinion.
Reversed and remanded.
BIRD and HEFFLEY, JJ., agree.
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