Cite as 2017 Ark. App. 354

ARKANSAS COURT OF APPEALS 

DIVISION I 

No. CV-16-671

KATHY PACE

APPELLANT

V.

CORA STEELE AND ESTATE OF 

RALPH STEELE, DECEASED

APPELLEES 

Opinion Delivered: May 31, 2017

APPEAL FROM THE LAWRENCE

COUNTY CIRCUIT COURT 

[NO. 38PR-13-57] 

HONORABLE PHILIP G. SMITH, 

JUDGE

AFFIRMED

BART F. VIRDEN, Judge

Appellant Kathy Pace appeals from the Lawrence County Circuit Court’s order 

admitting Ralph Steele’s will to probate. The primary beneficiaries of the will were Ralph’s 

nephew, Darrell Steele, and Darrell’s wife, appellee Cora Steele.1 Pace argues that the trial 

court erred in not finding procurement of the will by the beneficiaries and in concluding 

that Ralph had the requisite mental capacity and freedom from undue influence to make 

the will. We hold that the trial court clearly erred in finding that there was no procurement, 

but we nevertheless affirm the trial court’s decision admitting Ralph’s will to probate.2

 

 1

Darrell Steele died shortly before trial. 

2

Only part of the trial court’s ruling is clearly erroneous. If the trial court reached the 

right result, we will affirm even if we disagree with the trial court’s reasoning. See Matter of 

Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995). 
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I. Overview of Events and Medical Evidence

Wanda, Ralph Steele’s wife of approximately seventy-five years, died in March 2012. 

Ralph and Wanda had no children, but Ralph had many nieces and nephews, including 

Darrell and appellant Pace. 

In November 2012, Ralph fell and injured his knee. He was taken to the emergency 

room at St. Bernard’s Medical Center (St. Bernard’s) and given a knee brace. He then went 

to HealthSouth Rehabilitation Hospital (HealthSouth). Doctors later determined that Ralph 

had torn a muscle and needed surgery, which was performed at St. Bernard’s on December 

5, 2012. After Ralph was discharged, he returned to HealthSouth in mid-December 2012. 

Ralph then developed pneumonia and was admitted to St. Bernard’s on December 23, 

2012. When he was discharged on January 2, 2013, he returned to HealthSouth, where he 

remained until January 19. 

On January 7, 2013, during his stay at HealthSouth, Ralph signed a will. Both parties 

introduced medical records from St. Bernard’s, HealthSouth, and the Lawrence County 

Nursing Center. An “Interdisciplinary Daily Document” at HealthSouth dated January 7, 

2013, indicates that Ralph had “mild difficulty with appropriate decision making,” and as 

for his memory, he had “mild difficulty/self corrects.” There is also a note on that date 

indicating that, on a pain-intensity scale from zero to ten, Ralph was experiencing a five.3

A case-management-progress note dated January 7 indicates that Ralph had complained of 

 3

Pace asserts that a daily progress report for January 7, 2013, states that at 12:01 p.m.,

shortly after the will had been signed, pain medication was given to Ralph because he was 

suffering a ten out of ten on the pain-intensity scale. There is such a note in the addendum, 

but it is not dated. 
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“weakness.” A bill from HealthSouth shows that Ralph had been given three hydrocodone 

pain pills on January 6 and three more on January 7. A progress note dated January 9 

indicates that Ralph had “some mental status changes that occurred last evening” and that 

“his niece” had reported that he was better but “still having some confusion.”4

Ralph was discharged from HealthSouth on January 19, 2013. A document states 

that he was discharged “in care of his niece” and that Ralph required twenty-four-hour 

care. Ralph returned home for about a week, with Cora and Darrell taking care of him. He 

then sought admission to the Lawrence County Nursing Center. A capacity verification 

signed by Dr. Paul Vellozo and dated January 28, 2013, indicates that Ralph had “waxing 

and waning capacity and is able to make decisions some of the time.” In an admission 

document dated January 28, Dr. Vellozo circled “no” in response to the question “Dementia 

diagnosis?” Ralph was admitted to the nursing home on January 29. Ralph did not sign a 

resident-responsibilities form; instead, Cora signed as the responsible party. Above her 

signature, the form states that “[i]f the resident is unable due to physical/mental incapacity’s 

[sic] to understand and comprehend the above, the person named as responsible agent shall 

be required to review and acknowledge the basic rights as stated.” At the bottom of the 

page beside his signature and the date of February 1, 2013, Dr. Vellozo wrote that Ralph

was “unable to sign/comprehend due to dementia.” 

Ralph died on July 21, 2013, at the age of ninety-four. In August 2013, Pace asserted 

that Ralph had died intestate and nominated herself as administrator of his estate. The trial 

 4

There is some indication that Cora is the “niece” to which several medical records 

refer; Cora is also called Ralph’s “niece-in-law.” 
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court entered an order to that effect. Soon afterward, Cora and Darrell sought to admit 

Ralph’s will to probate and to set aside Pace’s appointment. Cora and Darrell also requested 

to be appointed executors of Ralph’s estate pursuant to the will. Pace asked that Cora and 

Darrell’s petition be denied because she alleged that Ralph’s will had been procured by fraud 

and undue influence. 

II. Bench-Trial Testimony

Dick Jarboe, an attorney who had been practicing law since 1969, testified that he 

had been contacted by either Cora or Darrell about preparing a will for Ralph. Jarboe first 

met Ralph at St. Bernard’s in December 2012. Jarboe stated that he had gotten the 

impression that Ralph was close to Cora and Darrell and wanted to make “a significant gift” 

to them. Jarboe stated that he had left after only ten to fifteen minutes because Ralph had 

said that he was not ready to prepare the will. Jarboe said that Cora subsequently came to 

his law office with notes and stated that Ralph wanted to leave all his property to her and 

Darrell. Jarboe observed that, although there was a signature block for Ralph on Cora’s 

notes, Ralph had not signed it. Despite this, Jarboe did not return to the hospital to visit 

with Ralph and did not speak with him on the telephone. Instead, he prepared Ralph’s will 

relying on the notes given to him by Cora. Jarboe testified that he did not think it would 

have been better if he had seen Ralph in person to confirm that Cora’s notes accurately 

represented how Ralph wanted his will prepared. Rather, Jarboe thought that those 

witnessing the signing of the will would know more about what Ralph wanted done with 

his property and whether he was competent to sign the will. Jarboe testified that he sent his 

bill for legal services to Cora. 
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Lavan Nicholas testified that she had known Ralph for approximately fifty years and 

that she and her husband had lived near Ralph and Wanda for many years and were very 

good friends. Lavan was present in the room when Ralph signed the will, and she had read 

the will to Ralph at Darrell’s request. She stated that she had then asked Ralph whether the 

will was what he wanted and that he had indicated it was and had not asked any questions. 

She said that Ralph had seemed very alert, had been sitting up in his bed, and had not 

appeared to be in pain. Lavan further stated that Ralph had recognized her and her husband

and had asked about their daughter. She had no reservation saying that Ralph knew and 

understood what he was doing, and she thought Ralph was aware that he had left other 

family members out of his will. Lavan testified that she thought Ralph trusted Cora and 

Darrell completely. 

Don Nicholas, Lavan’s husband, testified that he had known Ralph all his life. He 

said that after Darrell’s father had died, Darrell had been like a son to Ralph. Don testified 

that he was not surprised that Ralph had left everything to Cora and Darrell because Ralph 

had said several years earlier that he wanted Darrell to have everything of his after he died. 

Don recalled several instances in which Ralph had helped Darrell financially. According to 

Don, after Wanda died, Cora and Darrell had checked in on Ralph, along with Ralph’s 

nephew Joe Videll and Ralph’s niece Patsy Thompson. Don said that he had seen Ralph 

several days before he signed the will and that Ralph had told him he was making a will and 

asked him to witness the signing. Don recalled that Ralph had appeared to be paying 

attention while Lavan read the will. He said that there was nothing about Ralph’s 

appearance, demeanor, speech, or actions to suggest that he was not in his right mind on 
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the day he signed the will. Don testified that after signing the will, Ralph had said that he 

wanted Patsy to have $10,000 and had asked him to tell Darrell that. Don stated that, 

although Ralph had been in and out of the hospital, he was “okay mentally” and had not 

seemed confused or “out of his mind.” Don described Ralph as “fairly easy going” but said 

that he could not be pushed around and would not be easily persuaded or tricked into doing 

something. 

Bobby Teel testified that he had been friends with Ralph for approximately fifty 

years. He stated that Cora and Darrell had taken care of Ralph after Wanda died and that 

they had always been with him when he was at the hospital and in rehab. Teel testified that 

about a month before Ralph signed the will, he had told him that he was going to leave 

everything to Cora and Darrell “because all these other vultures had been coming around 

making appearances and nobody done anything for him but Darrell and Cora Steele.” Teel 

said that Darrell had called him and asked him to witness the signing of Ralph’s will and 

that Darrell had driven him to the hospital that day. He said that Ralph had recognized him

and had not appeared confused. Teel said that he did not think there was anything wrong 

with Ralph’s mind on the day he signed the will. Teel testified that he was not surprised 

that Ralph had left everything to Cora and Darrell and that “nobody was twisting [Ralph’s] 

arm” when he signed the will. 

Jun-Yilai, a physical therapist at HealthSouth, testified that Ralph had been her 

patient and that she had gotten to know him on a personal level. She said that Ralph had 

spoken about Cora and how she had helped him; that he had told her many times that, if it 

had not been for Cora, he would be dead; and that he had become very emotional when 
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speaking about Cora because he appreciated all she had done for him. Jun-Yilai said that 

Cora was at rehab with Ralph every day or every other day, except when she was sick. 

Darrell Steele, who was deposed just prior to his death, testified that Ralph had been

like a father to him when his own father passed away. Darrell stated that over the years he

had “[run] into some financial trouble” with which Ralph had helped him. Darrell said that 

in 1996, he bought a house and twenty acres from Ralph for only $65,000 and that, when 

he had trouble getting a loan, Ralph had said to him that he (Darrell) would end up with 

everything that he (Ralph) had anyway. Darrell said that he and Cora had seen Ralph every 

day after “Aunt Wanda” died. They had taken food to him, helped him with housework, 

paid bills, bought groceries, and taken him to doctors’ appointments. Darrell did not know 

whether other nieces and nephews had helped Ralph but said that it seemed like Ralph had 

always called him. He said that Ralph had chosen two good friends to witness the signing 

of the will and that he (Darrell) had contacted them a day or two before the will was to be 

signed. Darrell conceded that he and Don Nicholas owned a farm together and had “a lot 

of other business dealings.” Darrell stated that neither he nor Cora was in the room when 

Ralph had signed the will. Darrell said that he did not remember Ralph seeming confused 

at the hospital or at HealthSouth. Darrell described Ralph as “sharp as a tack” and said that 

it was “impossible to persuade Uncle Ralph to do something that he [did] not want to do.”

Cora Steele testified that Patsy Thompson was around quite a bit when Wanda was 

alive and had helped Wanda with tasks and that Joe Videll and his brother Bill also had 

helped Wanda and Ralph. Cora stated that after Wanda died, she had done Ralph’s laundry, 

cooked his meals or taken him out to eat, and set up an automatic draft for some of his bills 
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and paid the rest out of his account. Cora explained that Wanda had always handled these 

tasks and that Ralph was “pretty helpless around the house.” Cora testified that “[she and 

Darrell] loved Uncle Ralph and took care of him without hoping to benefit from his estate.”

Cora said that Ralph had first brought up the subject of creating a will during a 

hospitalization in December 2012. Cora said that she and Darrell had used attorney Dick 

Jarboe to handle other matters for them and had recommended him to Ralph. Cora agreed 

to make the arrangements for Ralph. She said that Darrell had called Jarboe and asked him 

to speak with Ralph at the hospital, to which Jarboe agreed. Cora said that Jarboe had not 

stayed long, and she recalled that Ralph had not felt well that day. 

Cora said that, around January 2, 2013, Ralph mentioned the will again and told her 

that he wanted her and Darrell to have everything of his. She said that she contacted Jarboe

and asked him to return to the hospital to speak with Ralph but that Jarboe had said it was 

unnecessary; he had instructed her to find out what property Ralph had and to compile a 

list of items with descriptions; and he had also told her that she would need two witnesses 

to verify Ralph’s signature. Cora said she had thought it was strange that Jarboe did not go 

back to see Ralph but that she had not asked questions. 

Cora said that she returned to HealthSouth where Ralph had specified that she and 

Darrell would get his house and its contents, the shop and its contents, his car, his checking 

account, and two CDs. She testified that Ralph had told her that all the necessary paperwork 

could be found in a desk at his house. Cora said that she had gone to Ralph’s house, gotten

the information, and typed it on her computer. Cora said that she had shown the list to 
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Ralph and that he had approved it. She said that she had not asked him to sign her notes 

because they were not legal documents and had been prepared for Jarboe’s benefit. 

Cora said that, a couple of days after she had given Jarboe the notes, she went to 

Jarboe’s office, picked up the finished will, and took it to the hospital for Ralph to sign. 

Cora said that Ralph had signed the will with only Lavan and Don Nicholas and Bobby 

Teel present. She said that, after the will had been signed, they commented that Ralph had 

been joking and laughing. Cora said that she had taken the signed will to Jarboe the 

following day but that Jarboe had told her to hold onto it, so she had kept the will in a vault 

at her home. Cora said that she had paid for preparation of the will from Ralph’s account.

Patsy Thompson testified that Ralph was her mother’s brother and that, after her 

mother passed away, Wanda had been a mother figure to her. Patsy conceded that Ralph 

and Darrell had “a close relationship” and that Cora had formed a relationship with both 

Ralph and Wanda. Patsy stated that Wanda and Ralph had spent most holidays with her

and her family. Patsy said that after Wanda died, she had gone by to see Ralph almost every 

day. She said that she had taken meals to Ralph, planted and watered flowers, helped him 

with a garden, assisted him with the washing machine and coffee maker, helped him pay 

bills and set up an automatic draft for some of his bills, and kept up with and taken him to

doctors’ appointments. She said that Ralph had called her, a registered nurse, late one night 

with a bowel impaction and that she had taken him to the hospital and stayed with him—

Cora and Darrell were not there. Patsy testified that she was with Ralph when he bought 

his last car. Patsy saw Ralph “go down” both physically and mentally and recalled that he 

had become paranoid that someone was trying to take his possessions. She said that she had 
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visited him at least once at HealthSouth at some point between January 2 and 19 and that 

he had appeared to be disoriented and confused. Patsy said that Ralph had recognized her 

but had not been certain where he was. She believed that Ralph could have been 

manipulated by someone he trusted. Patsy testified that, when she was without 

transportation for seven weeks, Cora had kept her informed about Ralph’s condition. Patsy 

was with Ralph about an hour before he died at the nursing home. Patsy testified that she 

was surprised that Ralph had left everything to Cora and Darrell because he and Wanda 

“did not play favorites.” 

III. Trial Court’s Order

The trial court entered its order and attached a detailed letter containing its findings. 

The trial court noted certain undisputed facts regarding the actions of Cora and Darrell, 

including the following: 

(1) Darrell and Cora engaged the services of Attorney Dick Jarboe to “talk to Ralph 

about a will”; (2) Mr. Jarboe visited Ralph in the hospital in December 2012, where 

Cora met Mr. Jarboe and escorted him to Ralph’s room; (3) In January 2013, Cora 

brought notes to Mr. Jarboe purporting to be Ralph’s directions for drafting the will; 

(4) Mr. Jarboe drafted the will according to the notes provided by Cora, gave the 

draft to her along with instructions about proper execution and witnessing of the 

will; (5) Cora transported the draft from the attorney to Ralph at the hospital; and 

(6) Darrell and/or Cora got two of Ralph’s long-time friends to witness his execution 

of the will. 

The trial court found that there was no procurement on the part of Cora and Darrell 

because their actions had been taken solely at Ralph’s direction. The court found no credible 

evidence that Cora or Darrell had coerced or unduly influenced Ralph. Further, the court 

found that Ralph had been cognizant of his property and fully competent to execute the 
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will on the day it was signed. The court found “overwhelming evidence” that Ralph had 

the requisite mental capacity to sign the will and that he did so without any undue influence. 

IV. Standard of Review

We review probate matters de novo, but we will not reverse 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 was made. Id. We defer to the 

superior position of the trial court to weigh the credibility of the witnesses. Id. 

V. Discussion

A. Procurement

The general rule in a will contest is that 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 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). When a beneficiary procures 

the making of a will, a rebuttable presumption of undue influence arises, which places on 

the beneficiary the burden of going forward with evidence that would permit a rational 

fact-finder to conclude beyond a reasonable doubt that the will was not the product of 

insufficient mental capacity or undue influence. Hodges v. Cannon, 68 Ark. App. 170, 5 

S.W.3d 89 (1999). Procurement of a will requires actual drafting of the will for the testator 

or planning the testator’s will and causing him to execute it. Bell v. Hutchins, 100 Ark. App. 

308, 268 S.W.3d 358 (2007). Whether the beneficiary procured the making of a will is a 

threshold question that must be answered in the affirmative before the beneficiary must offer 
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proof that the testator enjoyed both the required mental capacity and freedom of will. Id. 

Even if there is a finding of procurement, the presumption of undue influence does not shift 

the burden of proof. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). The burden, in 

the sense of the ultimate risk of nonpersuasion, never shifts from the contestant of the will. 

Id. “This does not, however, conflict with the rule concerning the burden of going forward 

with the evidence or the burden of evidence.” Id. at 47, 679 S.W.2d at 183.

Pace argues that Cora and Darrell procured Ralph’s will. We agree. The will that 

Jarboe prepared left everything to Cora and Darrell, despite the fact that Ralph had many 

other heirs. It was drafted strictly from Cora’s notes without again consulting Ralph, who 

had earlier declined an opportunity to discuss the will with Jarboe. Cora made all the 

arrangements with Jarboe; Cora picked up and delivered the will for Ralph’s signing at the 

hospital; and Darrell arranged for Ralph’s friends to witness his signing of the will. Under 

this set of facts, we hold that the trial court clearly erred in finding no procurement because 

Cora and Darrell effectively planned Ralph’s will and caused it to be executed. See Smith v. 

Welch, 268 Ark. 510, 597 S.W.2d 593 (1980); In re Estate of Garrett, 81 Ark. App. 212, 100 

S.W.3d 72 (2003). We hold that, because Cora and Darrell procured Ralph’s will, a 

rebuttable presumption of undue influence arose, and Cora had the burden of going forward 

with evidence from which a rational fact-finder could conclude beyond a reasonable doubt 

that Ralph’s will was not the product of insufficient mental capacity or undue influence. 

B. Testamentary Capacity and Undue Influence

The questions of mental competency and undue influence are so closely related and 

interwoven that we consider them together. Shepherd v. Jones, 2015 Ark. App. 279, 461 
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S.W.3d 351. In a case where the mind of the testator is strong and alert, the facts constituting 

undue influence must be far stronger than a case in which the mind of the testator was 

impaired, such as by disease or advancing age. Id. Testamentary capacity means that the 

testator must be able to retain in his mind, without prompting, the extent and condition of 

his property, to comprehend to whom he is giving it, and relations of those entitled to his 

bounty. 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 

he or she 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. 

Undue influence 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. Id. Undue influence may 

be inferred from the facts and circumstances of a case, and cases involving questions of undue 

influence will frequently depend on a determination of witness credibility. Id. Arkansas 

courts look at many factors when deciding undue-influence issues, including the testator’s 

physical and mental condition, the opportunity of the beneficiary “to mold the mind of the 

testator to suit his or her purposes,” the existence of suspicious circumstances, and whether 

the property disposition is a natural one. Beavers v. Williams, 2015 Ark. App. 140, at 5 (citing 

Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955)). 

First, Pace states that the medical records “are replete with evidence of [Ralph’s] 

diminished capacity and dementia.” She contends that Dr. Vellozo had “certified” that 
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Ralph suffered from dementia and had observed that Ralph’s mental capacity was “waxing 

and waning.” Pace points out that, on the day Ralph signed his will, the nurses’ notes 

indicate that Ralph had “mild difficulty with appropriate decision making” and, shortly after 

he had signed the will, the notes indicate that Ralph had intense pain registering ten out of 

ten for which he was given hydrocodone. 

The relevant inquiry is whether Ralph had the requisite mental capacity at the time 

the will was signed. Shepherd, supra. Dr. Vellozo indicated on February 1, 2013—three 

weeks after Ralph had signed the will—that Ralph could not sign a section on the nursinghome admission contract regarding a resident’s responsibilities because he had dementia. 

There are, however, other medical records where the same doctor contradicted this by 

specifically indicating that there was no dementia diagnosis. Although the nurses’ notes 

indicate that Ralph had mild difficulty with appropriate decision-making and may have been 

suffering intense pain around noon, witnesses present on the day Ralph signed the will said 

that he had not appeared to be in pain; that he had recognized them; that he had not 

appeared to be confused; and that he had seemed alert and attentive. These witnesses said 

that Ralph seemed to understand what he was doing, that he was “okay mentally,” and that 

there did not appear to be anything wrong with Ralph’s mind. Neither Don Nicholas nor 

Bobby Teel was surprised that Ralph had left everything to Cora and Darrell because of 

earlier statements made by Ralph when his mental capacity was not in question. Lavan 

Nicholas testified that, after she had read his will aloud, Ralph affirmed that the will was 

what he wanted. Our supreme court has upheld mental competency at the time of the 
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execution of the will even in the wake of evidence of some mental deterioration. Noland v. 

Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). 

Second, Pace argues that Cora and Darrell unduly influenced Ralph into leaving all 

his property to them. As support for this conclusion, she states that Cora and Darrell were 

in a position of trust with Ralph; that Ralph was old and vulnerable and had recently lost 

his wife; that Ralph was in a rehab hospital recovering from surgery at the time he executed 

the will; and that Ralph was dependent primarily on Cora and Darrell. 

While all these statements are true, they do not support Pace’s assertion that Ralph 

was therefore unduly influenced by Cora and Darrell. A testator’s decision to favor a person 

with whom the testator had developed a close and affectionate relationship is not, in and 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). Considering Teel’s testimony about Ralph’s 

reference to “all these other vultures”—presumably referring to Ralph’s other relatives—

we note that the testator may take into account, when considering his duties to relatives, 

past neglect, indifference, estrangement, and the like. See Werbe v. Holt, 218 Ark. 476, 237 

S.W.2d 478 (1951). Further, while Ralph’s age and physical condition are relevant factors 

to consider, we cannot say that they affected Ralph to the extent that his free will had been 

destroyed. 

Our de novo review of the record shows that Cora presented ample evidence from 

which a rational fact-finder could conclude beyond a reasonable doubt that Ralph’s will was 

not the product of insufficient mental capacity or undue influence. The ultimate burden of 

proving lack of capacity or undue influence by a preponderance of the evidence remained 
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on the party challenging the will, i.e., Pace. Rose, supra. Based on our de novo review of 

the evidence, or lack thereof, we conclude, as the trial court did, that Pace failed to meet

her burden of proof by a preponderance of the evidence. 

Affirmed. 

 HARRISON and GLOVER, JJ., agree. 

Parker Hurst & Burnett PLC, by: Donald L. Parker II and Ronald S. Burnett, Jr., for 

appellant. 

Glenn Lovett, Jr., PLC, by: Glenn Lovett, Jr., for appellee.