Carolyn MOORE, Appellant v. Jewell SULLIVAN, Executrix of the Estate of Charles Sullivan; Charlene Swaims; Rhonda Clegg; and Toni Hyatt, Appellees

No. CV-17-1049

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered February 13, 2019

Taylor & Taylor Law Firm, P.A., Little Rock, by: Andrew M. Taylor and Tasha C. Taylor, for appellant.

Wilson & Haubert, PLLC, by: Stefan K. McBride, for appellees.

N. MARK KLAPPENBACH, Judge *918Carolyn Moore and Randall Sullivan filed a will contest alleging that their father, Charles Sullivan, lacked testamentary capacity to execute his will dated March 24, 2009. The Faulkner County Circuit Court found that the will was valid and denied the petition. Moore now appeals, and we affirm.

Charles executed three wills in his lifetime on June 24, 1999; March 24, 2009; and January 6, 2010. Charles died in February 2010 at the age of ninety-four. In February 2013, the Faulkner County Circuit Court entered an order granting the complaint of Carolyn and Randall to set aside a deed executed on the same date as Charles's 2010 will on the basis of Charles's mental incapacity.1 In June 2013, Charles's wife Jewell filed a petition to have Charles's 2009 will admitted to probate. Carolyn and Randall filed their contest to the 2009 will in July 2013, alleging that Charles lacked testamentary capacity and was subjected to undue influence. Randall died in September 2013.

At the 2016 trial in this matter, the evidence established that Charles's 1999 will divided his real property between his three children as follows: approximately sixty acres to Randall, eighty acres to Carolyn, and eighty-seven acres to daughter Charlene Swaims. The will also bequeathed Charles's farm tools, implements, and equipment to Randall. The 2009 will changed Randall's distribution to a life estate with the remainder interest going to Randall's daughter. Carolyn's interest remained the same, except the north ten acres of her parcel were distributed to Charlene. Charlene was also bequeathed the farm tools, implements, and equipment.

Carolyn testified that in 2006 or 2007 she began noticing that Charles was having problems concentrating and remembering what he wanted to say. She said that by 2009, Charles was confused, could not understand what people said to him, and could not speak well. In addition to losing his hearing and vision, she said that he had trouble remembering things and would often cry. Carolyn said that Charles did not recognize her or Randall when they visited him in the hospital in September 2009. Carolyn testified that she got along great with her father, but she was not allowed in his home after September 2009 because Jewell refused to let her see him.

Carolyn testified that Charles's signature on his 2009 will looked like someone was helping him sign his name. She said that in 2007 or 2008, she asked her father to let her see what he intended each child to inherit, but Jewell would not show it to her. She believed this was related to her inheritance being reduced by ten acres. Carolyn said that she asked her father's lawyer, Bill Adkisson, to see the will in September 2009, and Adkisson told her that the will was not what Charles wanted but he could not do anything about it.

Five of Charles's friends and neighbors testified that they had each had an instance in which Charles did not recognize them near the end of his life despite having known them for years. According to the witnesses' testimony, these instances occurred up to two years before Charles's death. Randall's former girlfriend also testified *919that there were times Charles did not know who she was.

Jewell testified that she married Charles in 1974, and they had no children together. She was ninety years old at the time of trial. She claimed that Charles was in good shape cognitively in 2009, that he had no problems with confusion, and that there was never a time before March 2009 when he did not know the names of his children or what he owned. She said that because he was hard of hearing and had bad eyesight, he may not have recognized or heard people from a distance. She said that his hearing also resulted in him hardly answering or changing the subject when people spoke to him. However, she maintained that he still had a very clear mind and even worked cutting and baling hay in the summer of 2009.

Jewell said that three or four years before his death, Charles told Carolyn and Randall that they would have to start paying the taxes for the property they lived on and would later inherit because he needed money to supplement his Social Security since he could not raise as many cattle as he used to. She said that Carolyn and Randall complained about having to pay the taxes, and Carolyn was also mad that Charles told her she had to buy the feed for her cow. Jewell said that on one occasion when Carolyn was complaining about taxes and the feed, she screamed at Jewell and called her a "bitch." Jewell said that when she told Charles what happened, he said that Carolyn was not welcome in the house until she apologized to Jewell. Jewell said that this occurred around September 2009 and resulted in Charles, not her, keeping Carolyn away because she refused to apologize. Jewell said that prior to this time, Carolyn would only come by once a month, at best, and never stayed long. Jewell explained that Charles was unhappy with Randall for not helping him on the farm like he should and for selling some equipment that Charles did not want sold. She said that this prompted Charles to change his will to provide that Randall's daughter would get his part after Randall died and no one else could take it. Jewell said that Charles wanted the ten-acre portion changed from Carolyn to Charlene because there was a pond on that section and Charlene would be the one with cattle.

Jewell testified that Charles asked her to make an appointment with Adkisson to get his will changed. She said that Charles told Adkisson what he wanted, and Adkisson had her read the whole will back to Charles. Adkisson then asked Charles if that was what he wanted, and Charles said it was. Jewell said that Charles was clear minded and knew what he was doing with regard to the will.

On cross-examination, Jewell was questioned about symptoms she reported that Charles had experienced to a doctor at St. Vincent in March 2009. She said that she did not remember reporting what was put in the medical notes from a March 20 doctor's visit, including references to impaired decision-making and changes in personality. Jewell said that she talked to one doctor about Charles being paranoid and having hallucinations, but the doctor said it was caused by the medication Charles was taking and it cleared up after the doctor took him off that medication. She denied that Charles had depression and said that he was just very unhappy that he could not work like he used to.

Charlene Swaims testified that she saw her father daily in 2009 and that his mind was still very sharp in March 2009. She said that he did things his way, not her way or Jewell's way. Charlene said that she did not know Charles to have hallucinations, problems with confusion, or memory *920loss in 2009. She claimed that he was "sharp as a tack" until he passed away. She was present for the execution of the 2010 will and disagreed with the judge who found Charles to be incompetent on that day. She said that the ten acres were left to her because she had cattle that would use the pond and that Charles left only a life estate to Randall because Randall owed the government taxes and Charles did not want the government to take the property. She said that there were also problems in their relationship because Randall had taken some of Charles's farm equipment. Charlene said that she heard Carolyn say derogatory things to Jewell many times.

Dr. Gene Frantz, an allergist, testified that Charles was his patient for more than twenty-three years and that he saw him several times a year in his latter years due to problems including allergic rhinitis, asthma, recurrent pneumonia, bronchitis, and acute infections. These visits included one in February 2009, one on March 11, 2009, in which he gave Charles some antibiotics, and one in August 2009. Charles was on persistent medications for asthma and was intermittently on antibiotics and occasionally on steroids because of the severity of his pneumonia and resulting labored breathing. Dr. Frantz said that he never questioned Charles's capacity, never noticed any cognitive issues, and did not recall Charles ever giving him unclear answers. Dr. Frantz said that he communicated directly with Charles, and Charles never had issues explaining himself and his current health, although Charles would occasionally ask Jewell about a timeline or the date something had happened. Dr. Frantz said that he would have documented it if Charles was confused or had problems communicating what was going on. He said that he referred them to a gerontologist when Jewell asked his advice on age-related issues.

When asked on cross-examination about references to memory problems, confusion, and depression in Charles's St. Vincent medical records, Dr. Frantz said that he never observed these issues with Charles. He noted that two or three weeks can make a tremendous difference in the health of a person Charles's age. He said that illnesses such as a urinary tract infection can cause people that age to get tremendously confused and that pneumonia with decreased oxygen saturation, which he said was very likely for Charles, could also explain confusion. Dr. Frantz agreed that cognition could change in a matter of two or three days.

Freida Farmer testified that Charles was at church every Sunday and Wednesday around March 2009 and that he did not stop attending regularly until November 2009. She said that she never saw him not recognize her or other people and that he was an active participant in Bible study.

Attorney Bill Adkisson testified by deposition that he did occasional work for Charles over the course of twenty years, including preparing his wills. Adkisson said that he did not recall the circumstances of Charles contacting him about his 2009 will but said that Charles was a very headstrong person and would have told him what he wanted. Adkisson did recall that Charles was very disappointed and upset with Randall and Carolyn because they had refused to help him around the farm and perhaps refused to pay the taxes on the land that he expected to give them. Adkisson said that Charles wanted Randall to have a place to live but did not want him to have that land outright. Regarding the ten acres being changed from Carolyn to Charlene, Adkisson remembered that it had something to do with the topography of the property.

*921Adkisson said that at the time of the 2009 will, Charles had a hard time getting around and his hearing was bad, but he could still understand you and was mentally sharp. Adkisson thought he communicated directly with Charles without Jewell relaying questions. Adkisson said that he had no doubt as to Charles's competence to execute the 2009 will. He said that Charles's hearing and vision were worse at the time of the 2010 will and his speech was garbled, but Adkisson still thought he knew what he was doing. He did not recall watching Charles sign the 2009 will or whether he needed assistance signing. Adkisson denied telling Carolyn that the will was not what Charles wanted. The circuit court found in its order that Charles's 2009 will was "in all aspects valid" and denied the will contest.

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 circuit court 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). Although Carolyn contends that the circuit court made no factual findings upon which to apply the clearly erroneous standard, our courts have long held that in the absence of a showing to the contrary, we presume that the circuit court acted properly and made such findings of fact as were necessary to support its judgment. *Curry v. Pope Cty. Equalization Bd.* , 2011 Ark. 408, 385 S.W.3d 130 (citing *Morgan v. Stocks* , 197 Ark. 368, 122 S.W.2d 953 (1938) ). Here, because the circuit court found that the will was valid, we presume that the court found that Charles had the requisite testamentary capacity.

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, supra.* 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. *Id.* 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.* A testator's age, physical incapacity, and partial eclipse of mind will not invalidate a will if the testator has the requisite testamentary capacity when the will is executed, also known as a lucid interval. *Breckenridge v. Breckenridge* , 2010 Ark. App. 277, 375 S.W.3d 651.

Carolyn argues that Jewell's and Charlene's testimony that Charles remained mentally sharp until his death was refuted by the fact that his 2010 deed was later set aside due to lack of mental capacity and by his symptoms reported in his doctor's visit on March 20, 2009, four days before the execution of the will at issue. The medical records from that date state that Charles presented with "visual hallucination about 3 weeks ago which has resolved" and "memory problems, confusion for about 1 year now." When Charles was screened regarding specific symptoms, either he or Jewell reported depressive symptoms as well as trouble recalling names and faces, getting lost in familiar places, losing his train of thought, repeating himself, and impaired decision-making, among other things. Carolyn contends that the testimony from friends and neighbors *922regarding their interactions with Charles in and around 2009 supports the medical evidence of impairment.

Although there was certainly some evidence of memory and confusion problems, there was no testimony from the doctor who saw Charles on March 20 who could have testified to the extent or severity of his symptoms on that date and whether the symptoms fluctuated day-to-day. Dr. Frantz, on the other hand, who had been Charles's doctor for years, testified that he did not notice any cognitive issues with Charles on March 11 or any other time. He noted that cognition can change in a matter of days and that some physical illnesses can cause confusion problems. The notes from Charles's next visit at St. Vincent on April 15, 2009, stated that he had improved from his last visit and his "mentation is clearer."

In addition to the testimony of Jewell and Charlene, Bill Adkisson testified that Charles was competent on March 24, 2009. Carolyn contends that his opinion should be afforded little weight because Adkisson was unaware of Charles's symptoms, could not remember the execution of the will, and believed Charles was competent to execute the 2010 deed later set aside by the court. However, Adkisson did recall some specifics regarding Charles's reasons for changing his will, and the fact that he did not perceive cognitive issues lends support to a finding that Charles was competent on that day. As we stated in *Breckenridge* , *supra* , in finding that the testator experienced a lucid interval at the time the will was executed, the circuit court was allowed to credit the testimony of the witnesses who saw the testator on the day the will was executed. Giving proper deference to the circuit court's weighing of the credibility of the witnesses, we cannot say that the circuit court's ruling is clearly erroneous. Accordingly, we affirm.

Affirmed.

Virden and Whiteaker, JJ., agree.

1

This order was later affirmed by the court of appeals in February 2014. *See**Clegg v. Sullivan* , 2014 Ark. App. 143, 2014 WL 792029.

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