Cite as 2017 Ark. App. 354 

## ARKANSAS COURT OF APPEALS
DIVISION I No. CV

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- 671

KATHY PACE APPELLANT
V.
CORA STEELE AND ESTATE OF RALPH STEELE, DECEASED
APPELLEE S Opinion Delivered: May 31, 2017
APPEAL FROM THE LAWRENCE COUNTY CIRCUIT COURT [NO. 38PR

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- 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 undu e influence to make
the will. W e hold that the trial court clearly erred in finding tha t 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 ).Cite as 2017 Ark. App. 354

2 I. Overview of Events and Medical Evidence Wanda, Ralph Steele’s w ife of approxim ately 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 mu scle and needed surgery, which was performed at St. Bernard’s on December 5, 2012. After Ralph was discharged , he returned to Heal thSouth in mid

- December 2012. Ralph then developed pneumonia and was admitted to St. Bernard’s on December 23,
2012. When he w as discharged on January 2, 2013, he returned to HealthSouth , where he remained until January 19

. O n January 7, 2013, d uring his stay at He althSouth, Ralph signed a will . Both parties
introduced medical records from St. Ber nard’s, HealthSouth , and the Law rence 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 al so 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, state s that at 12:01 p.m., shortly after the will had been signed, pain m edication 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 adde ndum, but it is no t dated.Cite as 2017 Ark. App. 354

3 “weakness.” A bill from H ealthSouth 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 repo rted that he was better but “still having some confusion.” 4 Ralph was discharged from H ealthSouth 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 ab out 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
d ocument 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 -responsibil ities 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.”Cite as 2017 Ark. App. 354

4 court ente red an order to that effect . Soon afterward, Cora and Darrell sought to admit Ralph’s will to p robate and to set aside Pace’s a ppointment. Cora and Darrell also request ed to be appointed executors of Ralph’s estate pursuant to the will. Pace asked that Cora and Darrell’s p etition 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 Ral ph 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 th at he was not ready to prepare the will. Jarboe said that Cora subsequently came to
his law office with notes and sta ted 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

note s , 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 tele phone. Instead, he prepared Ralph’s will relying on t he no te s given to him by Cora. Jarboe testified that h e did not think it would have been better if he had seen Ralph in person to confirm that Cora’s note s accurately represented how Ralph wanted his will prepared. Rather, Jarboe thought that those witnessing the signing of the will would know more about wha t 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.Cite as 2017 Ark. App. 354

5 Lavan Nicholas testified that she had known Ralph for approximately fifty years and
that she and her h usband 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 ask ed any questions. She said that Ralph had seemed very alert, had been sitting up in his bed, and ha d not
appear ed 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 t hat 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 s urprised that Ralph had left everything to Cora and Darrell because Ra lph 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 rec alled that Ralph had appeared to be paying
attention while Lavan read the will. He said that there was nothing about Ralph’s appearance, de meanor, speech, or actions to suggest that he was not in his right m ind onCite as 2017 Ark. App. 354

6 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 an d out of the hospital, h e was “okay ment ally” 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 state d that Cora and Darrell had taken care of Ralph after Wanda died and that they had alw ays 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 sai d that Ralph had recognized him
and had not appeared confused. Teel said that he did not think there was anything wrong
with Ra lph’s mind on the d ay he signed the will. Teel testified that he was not surprise d that Ralph had left everyt hing to Cora and Darrell and that “nobody was twisting [Ralph’s] arm” when he signed the will. Jun

- Yilai, a physical therapist at Healt hSouth, te stified that Ralph had been her patient and that she had gotten to know him on a personal level. She said that Ralph had spoke n 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 whenCite as 2017 Ark. App. 354

7 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 ta k en food to him, helped him with housework, paid bills, bought groceries, and tak en him to doctors’ appointments. Darrell did not know
whether other niec es 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 sign ed. Darrell conceded that he and Don Nicholas owned a farm together and had “a lot of other business dealings.” Darrell sta ted that neither he nor Cora was in the room when Ralph had signed the will

. Darrell said that he did not remembe r Ralph seeming conf used 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] n ot want to do. ” Cora Steele testified that Patsy Thompson was around quite a bit wh en Wand a was alive and had helped Wanda with tasks and that Joe Videll and his brother Bill also had helped Wanda and Ralph. Cora state d that after Wanda died, she ha d done Ralph’s laundry,
cooked his meals or ta k en him out to eat, and set up an automatic draft for some of his billsCite as 2017 Ark. App. 354

8 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 J arboe to handle other matters for them and had recommended him to Ralph. Cora agreed

to m ake the arrangements for Ralph . She said that Darrell had called Jarboe and asked him to speak with Ra lph at the hospital, to which Jarboe agreed. Cora said that Jarbo e ha d not
stay ed 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 Ral ph 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 ne ed two witnesses to verify Ra lph’s signature. Cora said she had thought it was strange that Jarboe did not go
b ack to see Ralph but that she ha d not ask ed questions. Cora said that she returned to HealthSouth where Ralph had specified th at 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, got ten the information, and typed it on her computer. Cora said that she had shown the list toCite as 2017 Ark. App. 354

9 Ralph and that he had approved it. She said that she had not asked him to sign her note s because they were not legal document s and had been prepared for Jarboe’s benefit. Cora said that, a couple of days afte r she had given Jarboe the note s , 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 th e 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 ta k en 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 awa y, 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 ha d spent most holidays with her and her family

. Patsy said that a fter Wanda died, she had gone by to see Ralph almos t every day. She said that she had ta k en meals to Ralph , planted and watered flowers, helped him with a garden, assist ed him with the washin g machine and coffee maker, helped him pay bills and set up an automatic draft for some of his bills, and ke pt up with and ta k en 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 p ossessions. She said that she hadCite as 2017 Ark. App. 354

10 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 b elieved 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 nu rsing 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 findi ngs. 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 Da rrell
because their actions had been taken solely at Ralph’s direction. The court found no credible
evidence that Cora or Darrell had coer ced or unduly influenced Ralph. Further, the court found that Ralph had been cognizant of his property and fully competent to execute theCite as 2017 Ark. App. 354

11 will on the day it was signed. The court found “overwhelming ev idence” 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 ment al 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 b urden 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. Ca nnon , 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 b eneficiary procured the making of a will is a threshold question that must be answered in the affirmative before the beneficiary must offerCite as 2017 Ark. App. 354

12 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 se nse of the ultimate risk of non persuasion, never shifts from the contestant of the will.
Id

. “Th is 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 dr afted strictly from Cora’s note s without again consulting Ralph, who
had earlier declined an opportunity to discuss the will with Jarboe. Cora made all the

arr angements 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 Da rrell procured Ralph’s will, a rebuttable presumption of undue influence arose, and Cora had the burden of going forward
with evi dence from which a rational fact

- finder could conclude beyond a reasonable doubt that Ralph’s will was not the product of insuf ficient 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, 461Cite as 2017 Ark. App. 354

13 S.W.3d 351. In a case where the mind of the testator is strong and alert, the facts con stituting 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” thatCite as 2017 Ark. App. 354

14 Ralph suffered from dementia and had observed that Ralph’s menta l 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 Ralp h 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

wee ks after Ralph had signed the will

— that Ralph could not sign a section on the nursing home admission contract regarding a resident’s responsibilities because he had dementia. There are, however, other medical records where the same doctor contradicted t hi s 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 confu sed; 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
the r e 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 capa city was not in question . Lavan Nicholas testified that, after she had read his will aloud, Ralph affirme d that the will was
what he wanted. Our supreme court has upheld mental competency at the time of theCite as 2017 Ark. App. 354

15 execution of the will even in the wake of evidenc e 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 state s that Cora and Darrel l 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 Darr ell. 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 a nd affectionate relationsh ip 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 (19 85). 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, w hile R alph’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 remainedCite as 2017 Ark. App. 354

16 o n the party challenging the will , i.e., Pace

. Rose , supra . Based on our de novo review of
the evidence , or lack thereof , w e conclude, as the trial court did, that Pace failed to meet her burden of proof by a preponderance of the evidence.
Af firmed.
H ARRISON and G LOVER , 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.