NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION IV

ANGELA WALLS,

APPELLANT

V.

COURTNEY WALLS,

APPELLEE

CA99-1477

FEBRUARY 28, 2001

APPEAL FROM THE PULASKI COUNTY PROBATE COURT,

NO. PDE98-0264,

HON. HOBSON VANN SMITH,

PROBATE JUDGE

AFFIRMED

This is a will contest involving the decedent's illegitimate daughter, Angela Walls, appellant herein, and the decedent's son, Courtney Walls, the appellee. The trial court found that the will of Porter Walls dated August 20, 1986, which did not include appellant as a beneficiary, was valid, and that it revoked his 1981 will, which had included appellant as a beneficiary. Porter Walls died on May 1, 1997. Appellant argues three points on appeal: (1) that the trial court erred in failing to give full faith and credit to the Veterans Administration's determination that the decedent was incompetent when he executed the 1986 will; (2) that the statute requiring an illegitimate child to file a claim within 180 days of the father's death does not apply when the father dies testate; and (3) that Ark. Code Ann. § 28-9-209 violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. We find no error in the judge's rulings, and we affirm.

Probate court orders are reviewed de novo on appeal and are not reversed unless the

probate court clearly erred. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999). A probate court's finding of fact is clearly erroneous when, although there is evidence to support the fact found, the appellate court, on reviewing the entire evidence, is left with a definite and firm conviction that the probate court erred. Id. The party challenging the will's validity is required to prove by a preponderance of the evidence that the testator lacked mental capacity. Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999).

Appellant first argues that the trial court failed to give full faith and credit to the Veterans Administration's determination that Porter Walls, the decedent, was incompetent. From the abstract, it appears that appellee, Courtney Walls, petitioned the Pulaski County Probate Court on April 10, 1987, to have Porter Walls declared to be mentally incompetent and that a guardian be appointed for him. In that proceeding, appellee apparently relied upon a letter dated February 28, 1986, from Dr. Gordon Holt, a doctor with the Veterans Home Division of the Department of Veterans Affairs, in which Dr. Holt stated that Porter Walls had deteriorated mentally due to advanced senility to the point that he was incompetent and that a guardian should be appointed for him. Appellant argues that appellee has taken inconsistent positions in relying on Dr. Holt's 1986 letter in the guardianship proceedings to establish that his father was incompetent and, yet, later contending that Porter Walls was competent to execute his will on August 20, 1986. Appellant maintains that appellee should be estopped from arguing that his father was competent to execute the 1986 will and that res judicata should apply because Dr. Holt, in a letter dated six months prior to the execution of the 1986 will, expressed his opinion that Mr.Walls was incompetent.

Appellee admits that he did seek the guardianship for his father, but he explains that his father was not incompetent at the time but that his purpose was to enable him to assist his father in resolving a dispute over an unpleasant real estate matter involving the decedent's grandson. We reject appellant's contention that the probate court's 1987 finding of the decedent's incompetency in the uncontested guardianship proceeding is determinative of the issue of whether Porter Walls was competent to execute his will on August 20, 1986.

In Roberson v. Roberson, 188 Ark. 1018, 69 S.W.2d 275 (1934), the court noted that a prior adjudication of incompetency would merely create a presumption of incompetency, which could be overcome by sufficient evidence to the contrary. The trial court in the case at bar found persuasive the testimony of attorney Lynn Davis, who prepared the 1986 will, that the decedent possessed testamentary capacity on the date the will was executed. Although Davis's testimony was not included in appellant's abstract, it was included in appellee's supplemental abstract. Davis testified as to the procedure he used every time he drafted and oversaw the execution of a will, and how, because of the decedent's advanced age, he had asked Porter Walls even more questions than he normally would in order to satisfy himself as to Wall's competency. It was implicit in the trial court's order that it found that Dr. Holt's February 28, 1986, opinion of the decedent's incompetency had been effectively rebutted by the testimony of attorney Lynn Davis that Porter Walls was competent when he executed his will almost six months later. It is also significant that the probate court's adjudication of Porter Walls's incompetence did not occur until eight months after the execution of his 1986 will.

If the maker of a will has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). The time to look at a testator's mental capacity is at the time the will was executed. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). The testator's condition either before or after the time of making the will is not the test as to his mental capacity but is only relevant as indicating his testamentary condition at the time of signing the instrument. Rogers v. Crisp, Ex'x., 241 Ark. 68, 406 S.W.2d 329 (1966).

Appellant next argues that Ark. Code Ann. § 28-9-209 (1987), which requires an illegitimate child to file a claim within 180 days after the father's death, does not apply when the father dies testate. However, appellant cites no authority for her argument. The failure to offer any authority or to make a convincing argument in support of a point on appeal is sufficient reason to affirm the trial court's ruling on the point. Williams v. Martin, 335 Ark. 163, 980 S.W.2d 248 (1998). In its order, the trial court pointed out that, because appellant was omitted from the 1986 will, she would have been required, as a pretermitted heir, to take an intestate share of the decedent's estate. Although not disputing that she did not file a claim against the decedent's estate within 180 days as required by Ark. Code Ann. § 28-9-209(d), appellant argues that there is a difference in how the statute applies when the father has judicially acknowledged his child, but she does not explain that difference.

Under these circumstances we cannot say that the probate judge was clearly erroneousin finding that Porter Walls was competent to execute his August 20, 1986, will, nor in his finding that appellant, as an illegitimate child, is barred from inheriting from the estate of her father because of her failure to file a claim against his estate within 180 days following his death.

Finally, appellant argues that Ark. Code Ann. § 28-9-209 violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Appellant's failure to raise her constitutional issue below prevents this court from addressing the matter for the first time on appeal. Shaw v. Shaw, 337 Ark. 530, 989 S.W.2d 919 (1999). However, we note that an equal protection attack on Ark. Code Ann. § 28-9-209 has been resolved in favor of constitutionality in Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

We note that appellee has filed a motion asking for costs associated with supplementing the record and appellant's abstract to include attorney Davis's testimony. Although Mr. Davis's testimony was obviously pivotal to the trial court's decision and, therefore, essential to our review of that decision on appeal, appellant failed to designate Davis's testimony as part of the record on appeal and, therefore, did not include any of Davis's testimony in her abstract. Appellee supplemented the record and abstracted Davis's testimony. Arkansas Supreme Court Rule 4-2(b)(1)(2000) provides that this court may impose costs to compensate either party for the other party's noncompliance with abstracting requirements. Under the circumstances, we consider it appropriate to grant appellee's motion and to impose additional costs of $300, to be taxed by the Clerk along with other costs in the case.

Affirmed.

Stroud, C.J., and Vaught, J., agree.