Bellinda Barrera v. Annette Vanpelt

Annotate this Case
Bellinda BARRERA v. Annette VANPELT

97-801                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered April 9, 1998


1.   Wills -- contest -- "interested person" defined. -- Arkansas
     Code Annotated  28-40-113(a) provides that an "interested
     person" may contest the probate of a will, or any part
     thereof, by stating in writing the grounds of his objection
     and filing them in the court; section 28-1-102(a)(11) defines
     "interested persons" to include any heir, devisee, spouse,
     creditor, or any other having a property right, interest in,
     or claim against the estate being administered and a
     fiduciary; a devisee includes a legatee -- a person entitled
     by will to personal property.

2.   Wills -- sisters given equal share in estate -- appellant and
     siblings qualified as interested persons. -- Where appellant
     (and all of her sisters) was given an equal share of her
     father's estate, she met the term "interested person" as
     defined by law; in addition, if the will were set aside for
     some reason, appellant also would qualify, along with her
     siblings, as an "heir" within that statutory-defined term.

3.   Statutes -- construction of. -- The first rule in considering
     the meaning and effect of a statute is to construe it just as
     it reads, giving the words their ordinary and usually accepted
     meaning in common language.
4.   Wills -- statutory provisions do not require that contestant's
     interest must be detrimentally affected by will -- appellant
     had standing to contest will. -- Arkansas Code Annotated 
     28-1-102(a)(11) and 28-40-113(a), clearly permit devisees and
     legatees, having an interest in the estate, the right to
     contest a will, and nothing in those provisions requires that
     the contestant's interest must be detrimentally affected by
     the will; appellant had standing to question the validity of
     her father's will.

5.   Wills -- destruction by testator -- general rule. -- It will
     be presumed that a testator destroyed a will, executed by him
     in his lifetime, with the intention of revoking the will, if
     he retained custody of the will or had access to it, and if it
     could not be found after his death; this presumption, however,
     may be overcome by proof; the proponent of the will has the
     burden of proving by a preponderance of the evidence that the
     decedent did not revoke the will during his lifetime.

6.   Appeal & error -- findings of probate judge reviewed de novo
     on appeal -- standard of review. -- The supreme court, in its
     de novo review on appeal, will not reverse the findings of the
     probate judge unless they are clearly erroneous, giving due
     deference to his or her superior position to determine the
     credibility of witnesses and the weight to be accorded their
     testimony.

7.   Wills -- neither of two original wills given to testator could
     be found after death -- probate judge correctly presumed
     testator had revoked will. -- The testator had executed three
     original wills, as all three wills had been properly
     witnessed, and although two original wills had been given to
     the testator for him to retain, neither of the two wills could
     be found after his death; the trial court was correct in
     presuming appellant had revoked his will before he died. 

8.   Wills -- lost or destroyed will -- photocopy can be probated.
     -- A photocopy of a properly executed and attested will can be
     probated in place of a lost or destroyed will. 

9.   Wills -- evidence sufficient to overcome presumption that will
     was revoked -- will properly probated -- case affirmed. --
     Sufficient evidence was offered to overcome any presumption
     that the testator had revoked his will where there was no
     direct evidence that the decedent had actually revoked his
     will or had said he had revoked or destroyed his will, it was
     undisputed that a copy of his 1973 will was found in his
     lockbox after he died, no evidence was offered showing the
     testator had made any effort to revoke or destroy the will
     retained by his attorney, nor was any evidence introduced
     reflecting the testator had made any attempt to destroy the
     copies of his will previously given to his daughters; in
     addition, it was established that the testator bore and
     retained ill feelings towards his son for suing the family
     business and reporting it to the IRS; the probate judge
     reasonably concluded that if the testator had intended for all
     of his children to receive equal shares, he had from 1973 to
     his death to prepare another will, and that, other than the
     fact that two of his three original wills were missing, the
     evidence preponderated in showing he had not revoked his will.


     Appeal from Pulaski Probate Court; Vann Smith, Probate Judge;
affirmed.
     Brown, Schwander, & Greene, P.L.C., by:  Alice Ward Greene, 
for appellant. 
     Claibourne W. Patty, Jr., for appellee.

     Tom Glaze, Justice.
     This is a will contest case involving William Yuhola Laneer's
1973 will, which disinherited his son, William Richard Laneer, by
giving him one dollar and giving the balance of his estate,
equally, to his four daughters, Bellinda Barrera, Annette Vanpelt,
Ramona Desich, and Joan Edens.  After William Y. died in 1996,
Vanpelt petitioned to probate the 1973 will and requested she be
appointed executrix.  Barrera then petitioned to contest the 1973
will alleging, among other things, that the will was executed
through fraud and undue influence and that William Y. had expressed
no preference of any one of his children over another.  Vanpelt,
Desich, and Edens filed a motion to dismiss, asserting Barrera had
no standing under Ark. Code Ann.  28-40-113(a) (1987) to contest
the will because her pecuniary share would be less, not more, if
the will was set aside.  Barrera responded, stating she had
standing as an interested party to contest the will under  28-1-
102(a)(11) (1987).
     At trial, the parties developed two primary issues, (1)
whether Barrera had standing to challenge William Y.'s  1973 will,
and (2) if so, whether Barrera had shown that William Y. had
revoked the will, leaving his estate to be distributed to his five
children by the laws of descent and distribution.  Although the
trial court found Barrera had standing to contest the 1973 will, it
rejected her claim that the will had been revoked or destroyed. 
Upon finding William Y.'s will valid, the trial court admitted the
will to probate and appointed Vanpelt to serve as executrix.  
     Barrera appeals, challenging the trial court's findings made
in support of its ruling that the will is valid.  Vanpelt cross
appeals, arguing the trial court erred in finding Barrera had
standing to challenge the will's validity.  We first consider the
standing issue.
     Vanpelt characterizes the issue of standing as one of first
impression in Arkansas; if it is, it is an easy one to decide. 
As the trial court stated in its order,  28-40-113(a) establishes
who may contest a will, and the manner in which it is done.  That
provision provides that an "interested person" may contest the
probate of a will, or any part thereof, by stating in writing the
grounds of his objection and filing them in the court.  Section 28-
1-102(a)(11) defines "interested persons" to include any heir,
devisee, spouse, creditor, or any other having a property right,
interest in, or claim against the estate being administered and a
fiduciary.  A devisee is further defined to include a legatee -- a
person entitled by will to personal property.  Ark. Code Ann. 
28-1-102(a)(6) and (14).  Here, Barrera (and all of her sisters)
was given an equal share of her father's (William Y.'s) estate, so
she unquestionably meets the term "interested person" as defined by
law.  In addition, if William Y.'s will were set aside for some
reason, Barrera also would qualify along with her siblings as an
"heir" within that statutory-defined term.
     Vanpelt cites several secondary authorities for the
proposition that before a person can contest a will, the contestant
must have some pecuniary or beneficial interest in the estate of
the decedent that is detrimentally affected by the will.  See 80
Am.Jur.2d, Wills,  892 (1975).  She further argues that, the mere
circumstance that a person may be interested in the administration,
distribution, or partition of an estate is not sufficient if he
will not suffer any detriment from the will.  Id., see also 95
C.J.S. Wills,  329 (1957); cf. 39 A.L.R.3d 321.  As set out and
discussed above, our statutes,  28-1-102(a)(11) and 28-40-113(a),
very clearly permit devisees and legatees, having an interest in
the estate, the right to contest a will, and nothing in those
provisions requires that the contestant's interest must be
detrimentally affected by the will.  The first rule in considering
the meaning and effect of a statute is to construe it just as it
reads, giving the words their ordinary and usually accepted meaning
in common language.  See Dunklin v. Ramsey, 328 Ark. 263, 944 S.W.2d 76 (1997).  Accordingly, we hold Barrera had standing to
question the validity of William Y.'s will.  
     We now turn to Barrera's argument that William Y.'s 1973 will
was revoked and should be set aside.  A short discussion of the
events surrounding the execution of the will is needed.  Attorney
Hubert Alexander prepared the will in 1973.  At that time, William
Y. and his wife harbored bad feelings toward their son, William R.,
who at his father's urging, had been made a partner in William Y.'s
lumber business.  Sometime after being made a partner, William R.
believed money was missing from the business, and he determined the
money went into an account bearing his mother's and Vanpelt's
names.  He sued the company for an accounting.  He also reported
the company to the Internal Revenue Service.  These ill feelings
resulted in William Y. and his wife going to Alexander, who advised
them that, in order to preclude William R. from inheriting their
estate, they would need to name William R. in their mutual wills in
order to prevent him from receiving an intestate share upon their
deaths.  Identical wills subsequently were prepared for William Y.
and his wife, giving a one dollar amount to William R. and the
remainder of the estate to his four sisters.  Mrs. Laneer
predeceased William Y., making William Y.'s will the one at issue
in this case.  
     It is significant to mention that William Y. actually had
executed three original wills, as all three wills had been properly
witnessed.  One will was on paper captioned "Last Will and
Testament" -- this will and a second original executed copy were
given to William Y.  A third copy, properly executed and witnessed,
was retained by Alexander.  A photocopy of the original will was
given to Vanpelt.  After William Y. died, no one could find the
will executed on will paper amongst his possessions; however, a
copy of one of the three original wills was found in his lockbox
after his death.  This copy of the original and Alexander's
executed and duly attested original copy were introduced for
admission to probate by Vanpelt.
     After the parties submitted their evidence and testimony, the
trial court found that any one of the three original wills could
suffice as the original will.  It further concluded that, even
though the two original wills previously given William Y. were
missing at the time of William Y.'s death, causing a rebuttable
presumption to arise that William Y. had destroyed his 1973 will,
the court found that Vanpelt's proof had overcome any presumption
of revocation.   
     The trial court's decision correctly acknowledged the general
rule that it will be presumed that a testator destroyed a will,
executed by him in his lifetime, with the intention of revoking the
will, if he retained custody of the will or had access to it, and
if it could not be found after his death.  Rose v. Hunnicutt, 166
Ark. 134, 265 S.W.2d 651 (1924); see also Gilbert v. Gilbert, 47
Ark. App. 37, 883 S.W.2d 859 (1994).  This presumption, however,
may be overcome by proof.  Id.  The proponent of the will has the
burden of proving by a preponderance of the evidence that the
decedent did not revoke the will during his lifetime.  Garrett v.
Butler, 229 Ark. 653, 317 S.W.2d 283 (1958); see also Thomas v.
Thomas, 30 Ark. App. 152, 784 S.W.2d 173 (1990).  This court in its
de novo review on appeal will not reverse the findings of the
probate judge unless they are clearly erroneous, giving due
deference to his or her superior position to determine the
credibility of witnesses and the weight to be accorded their
testimony.  Baerlocker v. Highsmith, 292 Ark. 373, 730 S.W.2d 237
(1987).  In the present case, two of William Y.'s original wills
had been given William Y for him to retain, but neither of the two
wills could be found after his death.  Under these circumstances
and our case law, the trial court was correct in presuming William
Y. had revoked his will before he died.  Thus, the critical issue
is whether the probate judge was clearly erroneous in concluding
Vanpelt, as the proponent of William Y.'s will, offered sufficient
evidence to overcome any presumption that William Y. had revoked
his will.  We hold the record supports the judge's decision.
     The respective parties offered circumstantial but conflicting
evidence on the revocation issue.  For example, Barrera testified
that William Y. had expressed on various occasions that all five of
his children should be treated equally, and that, on one occasion
after execution of their wills in 1973, both William Y. and his
wife gave each of the five children a gift of $5,000.00.  Barrera
also related that, after his wife's death, William Y. said that he
had five children and now his assets would be divided among the
five children.  Barrera's husband testified to the same effect,
namely, that William Y. wanted all of his children to share equally
in his estate.  William R.'s testimony corroborated the Barreras',
plus he added that his relationship with William Y. had changed for
the better "sometime in the 1970's around his parents' 50th wedding
anniversary."  And finally, Arlina Jefferson, William Y.'s
caretaker during his final months, testifed that, although William
Y. had never mentioned a will, he had told Jefferson that he wanted
all his children treated equally.  
     The probate judge was provided with contrary evidence to that
presented by Barrera, which, if believed, showed William Y. had
never revoked his 1973 will.  In this respect, we first note that,
while William Y. and his wife executed mutual wills in 1973, no
direct evidence was offered at the hearing of the probate of
William Y.'s will that showed he had actually revoked his will or
had said he had revoked or destroyed his will.  In fact, even
though Barrera and William R. both testified that William Y. had
denied ever having executed a will like his wife's (disinheriting
William R.), considerable evidence was presented showing they had
executed identical wills.  It is further undisputed that, as
mentioned earlier, a copy of William Y.'s 1973 will was found in
his lockbox after he died.  This court has held that a photocopy of
a properly executed and attested will can be probated in place of
a lost or destroyed will.  See Tucker v. Stacy, 272 Ark. 475, 616 S.W.2d 473 (1981).  In the present case, William Y. not only had an
original copy of his 1973 will in his lockbox, but also he knew his
attorney Hubert Alexander had retained the third original will. 
Nonetheless, no evidence was offered showing William Y. had made
any effort to revoke or destroy the will retained by Alexander. 
Nor was any evidence introduced reflecting William Y. had made any
attempt to destroy the copies of his will previously given to his
daughters.     
     The foregoing evidence, plus testimony establishing that
William Y. and his wife bore and retained ill feelings towards
William R. for suing the family business and reporting it to the
IRS, is sufficient to support the probate judge's decision to
probate William Y.'s will.  From this evidence, we believe the
judge could reasonably conclude, as he did, that, if William Y. had
intended for all of his children to receive equal shares, he had
from 1973 to his death to prepare another will, and that, other
than the fact that two of William Y.'s three original wills were
missing, the evidence preponderated in showing William Y. had not
revoked his will.
     Affirmed.