DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

CA00-784

June 27, 2001

LOIS BRANSCUM AN APPEAL FROM SEARCY COUNTY

APPELLANT CHANCERY AND PROBATE COURTS

V. NOS. P98-54 and E98-173

JERRY PASSMORE, CHARLENE HONORABLE CHARLES E. CLAWSON, JR.

TUCKER, DALE PASSMORE, et al. CHANCELLOR AND PROBATE JUDGE

APPELLEES

REVERSED AND REMANDED

This is an appeal from the Searcy County Chancery and Probate Courts' decisions setting aside the will of W.J. Passmore and refusing to admit it to probate. We reverse the trial judge's finding that appellant Lois Branscum procured the will and remand for further proceedings.

Appellees Jerry Passmore, Charlene Tucker, Dale Passmore, Hendrix Passmore, Betty Lockerby, Emma Morrison, Daniel Passmore, Barbara Passmore, and Larry Passmore are nieces and nephews of W. J. Passmore, who died unmarried and without children in June 1998. In his August 2, 1995, will, Mr. Passmore named appellant, his fiancee of thirty years, as his executrix and sole beneficiary. At the time of the will's execution, Mr. Passmore was still coping with the debilitating effects of a stroke that he had suffered the previous May. Appellant provided daily assistance to Mr. Passmore after his stroke and accompanied him to the office of the attorney who drafted the will. After appellant sought to admit the willto probate, appellees resisted its admission on the basis of Mr. Passmore's lack of testamentary capacity. Appellees also filed suit in chancery court for an injunction prohibiting appellant from disposing of any property belonging to the estate.

At trial, appellant testified about the daily assistance she gave Mr. Passmore, his mental competence, and the circumstances attendant to the execution of his will at the office of attorney Jerry Patterson. She also presented the testimony of Marie Lindsey, who accompanied appellant and Mr. Passmore to Mr. Patterson's office; Ron Byer and Robert Sweetin, who were neighbors of Mr. Passmore; Ellie Wilson, who knew Mr. Passmore for many years and assisted him on occasion; and A.B. Morrison, who is also a nephew of Mr. Passmore. All of these witnesses supported appellant's testimony that Mr. Passmore had the mental capacity to understand and conduct his personal business. The depositions of Mr. Patterson and his secretary, Paula Smith, along with that of Dr. Charles Daniel, Mr. Passmore's physician, were admitted into evidence. Dr. Daniel expressed doubts about Mr. Passmore's ability to express himself. Mr. Patterson did not remember Mr. Passmore but stated that he had rarely prepared a will for someone who could communicate with only a few words. Ms. Smith recalled Mr. Passmore as a quiet older gentleman. Appellees Jerry Passmore, Loretta Smith, and Charlene Tucker testified about the adverse effects Mr. Passmore suffered from the stroke, especially in his ability to comprehend and use language.

The probate judge entered an order refusing to admit the will to probate. He found that appellant, the sole beneficiary, had arranged for its preparation and execution and that appellant failed to prove beyond a reasonable doubt that Mr. Passmore possessed the requisite mental capacity and freedom of will to execute a will. The probate judge alsofound that appellant failed to prove beyond a reasonable doubt that Mr. Passmore executed the will. He explained this finding by stating that, although the person with whom Mr. Patterson and his secretary had communicated regarding its preparation had been able to articulate his wishes, the testimony clearly demonstrated that Mr. Passmore's ability to do so was inhibited. As chancellor, the trial judge set the will aside for the same reasons and enjoined appellant from disposing of any property of the estate.

Chancery and probate cases are reviewed de novo on appeal, but this court will not reverse unless the findings of the trial judge are clearly erroneous. Norman v. Norman, 342 Ark. 493, 30 S.W.3d 85 (2000); Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996). A finding is clearly erroneous when, although there is evidence to support it, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made. Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001).

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 was the victim of undue influence when the will was executed. Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001). It is equally well settled that when the person benefitting from the will also engages in procuring the will, a rebuttable presumption of undue influence arises and creates a burden for the proponent of the will to prove beyond a reasonable doubt that the testator had both the testamentary capacity as well as the freedom from undue influence necessary to execute a valid will. Id. A beneficiary procures a will by actually drafting it for the testator or by planning it and causing him to execute it. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992); Hodges v. Cannon, 68 Ark. App.170, 5 S.W.3d 89 (1999). However, a beneficiary who is merely present when a will is drafted does not, by her presence, procure the will. Id.

Appellant challenges the trial judge's finding that she arranged for the will to be made and his shifting to her the burden of proving that Mr. Passmore actually executed it and that he did so with testamentary capacity and without undue influence. We must agree with appellant that the trial judge's finding that she took Mr. Passmore to Mr. Patterson's office is clearly erroneous, because the only testimony presented at trial on this issue was that Mr. Passmore drove to the lawyer's office, taking appellant and Ms. Lindsey with him. It was, therefore, error for the trial judge to shift the burden of proof to appellant. Accordingly, we reverse and remand for the trial judge to reconsider the evidence in a manner that is consistent with this opinion.

Reversed and remanded.

Robbins, J., agrees.

Griffen, j., concurs.

Wendell L. Griffen, Judge, concurring. While I join Judge Crabtree's principal opinion and hold that the probate judge's finding that the appellant procured the testator's will must be reversed because it is clearly erroneous, I would also hold that the probate judge erred when he found that the appellees met their burden of proof on the issues of testamentary capacity and undue influence. The contestants to the Passmore will bottom their challenge on the fact that the testator was aphasic following a stroke in May of 1995 before the August 2, 1995 will was executed. Thus, the contestants point to the testator's speech limitations following the 1995 stroke as indication of his lack of testamentarycapacity and suggestive that he lacked the strength of will to resist any influence that appellant supposedly exercised over him.

Our laws are well settled that a party challenging the validity of a will must 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 at the time the will was executed, unless it is found that the proponent of the will also drafted or procured the will. See Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001). Because the issues of testamentary capacity and undue influence are closely related, this court considers them together. See id., 39 S.W.3d 774. A person is said to have testamentary capacity when he is able to 1) retain in his memory, without prompting, the extent and condition of his property, and 2) comprehend how, to whom, and under what circumstances he is disposing of the property. See id., 39 S.W.3d 774. Capacity is determined at the time the will is executed, not before or after. See id., 39 S.W.3d 774. Undue influence is said to exist when there is a "malign influence resulting from fear, coercion, or any other cause which deprives the testator of his free agency in disposing of his property." See Gross v. Young, 242 Ark. 604, 611, 414 S.W.2d 624, 628 (1967) (quoting Boggianna v. Anderson, 78 Ark. 420, 94 S.W. 51 (1906)). The fact that a beneficiary influences a testator over routine affairs, or that a testator chooses to reward someone with whom the testator has a close relationship is not sufficient to establish that the beneficiary procured a will through undue influence. See Pyle v. Sayers, supra.

My research of Arkansas case law did not reveal other cases concerning aphasia and its effect on testamentary capacity. However, inSpeaks v. Speaks, 224 P. 533 (1924), the supreme court of Oklahoma reviewed whether or not a testator, who responded to questions by nodding his head and stating "uh huh," lacked testamentary capacity. The court held that any exclamation, declaration, or gesture made in response to an inquiry that expresses a testator's intention and thoughts that reasonable minds would not differ, is a sufficient method to express intent or desire. See Speaks, supra. Also, in In re Sawyer's Estate, 209 P.2d 864 (1949), the Oklahoma supreme court held that it was enough for a testator to convey through words or conduct that a will was his and that he wanted witnesses to sign it. And, in King v. Gibson, 249 P.2d 84 (1952), the Oklahoma supreme court held that a testator who suffered from aphasia had the requisite testamentary capacity to execute a will. The court reasoned that evidence of a weak physical condition was not enough to demonstrate lack of testamentary capacity. The court went on to hold that the trial court's finding that the testator possessed testamentary capacity was not clearly against the weight of the evidence. It referenced the physician's testimony that when decedent left the hospital he could not talk and that the physician could not say what decedent's mental capacity was at a later date. Further, it noted the testimony of the attorney who testified that he prepared the will after asking the decedent questions and that decedent nodded his assent. See King v. Gibson, supra.

In the present case, the appellees failed to meet their burden of proving by a preponderance of the evidence that decedent lacked testamentary capacity. The record indicates that the probate judge was presented with the deposition testimony of decedent's physician, who testified that decedent suffered from aphasia, which affected his ability to communicate. While the physician observed thatdecedent lacked the ability to communicate through the use of phrases and the ability to articulate abstract ideas, the physician testified that he could not say whether decedent was competent, because an inability to communicate did not necessarily mean an inability to reason. Dr. Daniel testified that he did not see decedent every month, and that decedent usually communicated through the use of the words "yeah, uh-huh, and yes." He also testified that decedent would shake his head yes or no sometimes, and could communicate what he meant by pointing or gesturing. However, Dr. Daniel testified that decedent's language problem was sometimes confusing because his response was always "yeah," or a curse word.

All of the lay witnesses testified that decedent had a limited vocabulary, which consisted of basically three words including yeah and nay. However, the vast majority of the witnesses testified that appellant recognized names and faces, lived alone, read the paper, went to the mailbox to retrieve his mail, drove a vehicle, and could communicate by using yes or no responses. Indeed, the witnesses who questioned decedent's competency did so in reference to his inability to communicate, not his inability to reason. For instance, Charlene Tucker, decedent's niece, testified that she believed decedent was incompetent because of his inability to use language, because he cursed, and because the conversation had to be initiated by the visitor. Likewise, Loretta Smith testified that she did not have conversations with decedent and that she communicated with him through the process of elimination. Also, Jerry Passmore testified that decedent was not competent because he could not talk other than using one word phrases, and could not write, other than signing his name.

The ability to reason does not depend on an ability to verbalize. To uphold that conclusion would render Stephen Hawking, the renowned astrophysicist who communicates only through the use of a computer because of a devastating neurological condition, unfit to make a will. Appellees had the burden of proving Passmore unfit to make a will, not a poor talker. They proved that he could not talk but failed to show that his inability to talk had any impact whatsoever on his capacity to understand the nature and extent of his estate, identify the natural objects of his bounty, and transact his affairs. In fact, appellees proved precisely the contrary. There was consistent testimony that Passmore was very upset after Jerry Passmore, a nephew, placed a fuel tank on the testator's property without permission.

The record also indicates that appellees failed to meet their burden of proving that the will was executed as a result of undue influence or lack of free will. While it is beyond question that appellant and decedent were involved in a long-term relationship, the record is devoid of any proof that appellant used fear, coercion, or any other means to deprive decedent of his free agency to dispose of his property. There is no testimony as to any conversations, suggestions, innuendoes, intimidation, or other manners of pressure or coercion on the part of appellant that served to deprive the testator of his free will. In fact, the overwhelming consensus of opinion was that the testator was a strong-willed person who made his positions known despite the limitations of his speaking ability.

Therefore, I would reverse and remand to the probate judge with instructions to admit the August 2, 1995, will of W. J. Passmore toprobate and vacate the injunction entered by the chancellor which barred appellant from removing property from the decedent's residence. Inasmuch as we have already reversed the probate court's decision as to procurement, these issues are subject to be considered on remand.