NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN E. JENNINGS, JUDGE

DIVISION IV

CA00-1197

September 12, 2001

EDWARD THOMPSON AN APPEAL FROM CROSS COUNTY

APPELLANT PROBATE COURT

NO. P98-2

V.

HONORABLE BENTLEY E. STORY,

PROBATE JUDGE

WILMA DALLAS

APPELLEE AFFIRMED AS MODIFIED

In this case, we are asked to review the probate judge's decision to set aside the will of Mrs. Rosa Thompson. Mrs. Thompson died in 1997 at the age of ninety-three. She was survived by her son, appellant Edward Thompson, her daughter, appellee Wilma Dallas, and six grandchildren. In her will, she bequeathed $497,500 in cash gifts plus five-eighths of her residual estate to appellant's family members and $102,500 plus three-eighths of her residual estate to appellee's family members. On April 7, 1998, appellee filed a petition to set aside the will on the grounds of undue influence, lack of testamentary capacity, and improper execution and attestation. Following a trial in which the testimony of approximately thirty witnesses was heard and numerous items of documentary evidence were admitted, theprobate judge entered a detailed seventeen-page decree setting aside the will. He found that the will was properly executed and attested and that the testatrix had testamentary capacity,

insofar as she was able to sign her will and recall the extent of her bounty. However, he declared that the will was invalid because of undue influence exercised by appellant, who procured the will. The judge further found that $110,000 in inter vivos gifts given by the testatrix to appellant and his family were the result of undue influence. That amount was deducted from any funds appellant was to receive through intestate succession. Appellant argues on appeal that the judge's rulings regarding undue influence, procurement, and the inter vivos gifts were erroneous. We affirm as modified.

Probate court orders are reviewed de novo on appeal, and are not reversed unless the probate court's findings of fact are clearly erroneous. A 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 the definite and firm conviction that the probate court erred. We defer to the superior position of the probate judge to determine the credibility of witnesses and the weight to be accorded their testimony. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999).

Appellant argues that the probate judge erred in finding that the will was invalid because of undue influence. The influence that the law condemns and regards as undue is not the legitimate influence that springs from natural affection, but the malign influence that results from fear, coercion, or any other cause that deprives the testator of her free agency in the disposition of her property. See Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001). Whether a will was procured by undue influence is a question of fact. Carpenter v. HoraceMann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987). Appellee, as the party contesting the will, had the burden of proving undue influence by a preponderance of the evidence. Pyle v. Sayers, supra.

Mrs. Thompson died on December 13, 1997. In the fifty years prior to her death, she suffered from various health problems that required the care and attention of her family. Until late 1996, most of this care was provided by appellee, even though appellee lived in Memphis and the testatrix lived in Wynne. Appellee took the testatrix to various doctor appointments and sat with her when she was hospitalized. Appellant, who lived across the highway from the testatrix, did not provide similar care during that time.

When appellant and appellee's father died in 1990, the family land was divided, with appellee receiving the family home and appellant receiving the house across the highway that he had been occupying. Appellee agreed to allow the testatrix to live in the family home for the remainder of her life. The two continued to enjoy a good relationship, seeing each other at least every two weeks.

In 1996, appellee developed health problems of her own and could not care for her mother as she had before. Appellant began spending a great deal of time with the testatrix, sleeping at her house and taking his meals there. He and his daughter-in-law, Francis Thompson, began caring for the testatrix and helping her with errands. According to appellee, her relationship with the testatrix changed around this time. The testatrix did not visit appellee's home again and she began to treat her differently. Later, in November 1997, the testatrix told appellee that if appellee visited her home again, she would call the sheriff.

Beginning in late July or early August 1997, the testatrix made several visits to the office of attorney Joe Boeckmann to have her will prepared. On each occasion, she was accompanied by either appellant or Francis Thompson or both of them. At that time, the bulk of the testatrix's estate consisted of approximately fifty certificates of deposit at four banks in Cross County. Most of the certificates were held jointly with other family members or payable on death to them. When the testatrix advised Boeckmann of her intention to dispose of her property by will, Boeckmann informed her that, if her assets were to pass through her estate, the certificates would have to be changed to reflect sole ownership in her. He also advised her, upon learning that her estate was valued at $800,000 to $900,000, that she should make cash gifts to family members to avoid estate taxes. This information was imparted by Boeckmann to Francis Thompson as well.

On August 13, 1997, the testatrix was hospitalized with a pulmonary embolism. She presented as dehydrated and confused, and her confusion was mentioned in nurse's notes through August 20. Nevertheless, on August 13 and 14, the certificates at all four banks were changed to reflect the testatrix as the sole owner. According to Francis Thompson, she and appellant, at the request of the testatrix, retrieved the certificates, took them to the testatrix for the appropriate signatures, and returned them to the banks. On August 26 and 27, 1997, just a few days after her release from the hospital, the testatrix wrote several gift checks. Almost $50,000 was given to appellant's family, and $3,000 was given to appellee's family. Later, in October, another $60,000 was given to appellant's family.

On October 20, 1997, the testatrix executed her will in the office of Joe Boeckmann. Appellant and Francis Thompson were present when the will was signed. According toBoeckmann, the testatrix was competent to make her will and was aware of her holdings and the objects of her bounty. She also told Boeckmann that she had had "nothing but trouble" from appellee, and she instructed Boeckmann to place a clause in the will that, if appellee sold the family land to anyone outside the family during the testatrix's lifetime, all bequests to her would lapse. Two months after executing her will, the testatrix died. Appellee, feeling that the disparate bequests between her and appellant were the result of, among other things, appellant's undue influence, contested the will.

At trial, a possible explanation for the testatrix's ill-feeling toward appellee was revealed through the testimony of appellant's daughters, Barbara Thompson Mugge and Margaret Thompson Ellis, and Margaret's husband, Richard Ellis. These witnesses testified that appellant had resented appellee and her husband for many years, based on former business dealings and perceived inequality of treatment of the two families. Further, according to Margaret and Richard Ellis, appellant said in 1997 that he told the testatrix that appellee was repairing the testatrix's home because appellee was planning to put the testatrix in a nursing home and rent the place to others. Richard Ellis also testified that appellant accused appellee's daughter Debra Walker of trying to kill the testatrix by taking her medicine from her, an accusation that was repeated by the testatrix while she was hospitalized in August 1997. Margaret Ellis further testified that the appellant "just told me all along for months that we were going to find out when we get the will that [the testatrix]...believed what he was telling her." This testimony was given by these witnesses despite the fact that, once the will was set aside, they lost $50,000 in bequests.

The probate judge found that appellant told the testatrix things that were not true for the purpose of inducing her to believe that appellee would move her to a nursing home and that her granddaughter Debra had tried to kill her. He ruled that, as a result of these fraudulent misrepresentations, the testatrix's mental state was affected to the extent that her will did not reflect her desires but appellant's.

Appellant argues that no proof was presented that would merit a finding of undue influence. We disagree. Undue influence may be inferred from the facts and circumstances of a case. See Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992). Such influence is generally exercised in secret, not openly. See Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955). Its sinister and insidious effects must be determined from the facts and circumstances surrounding the testatrix, her physical and mental condition as shown by the evidence, and the opportunity of the beneficiary of the influenced bequest to mold the mind of the testatrix to suit his or her purposes. See id. The evidence in this case showed that the testatrix, while of strong and independent mind, suffered from illness, dependence, and the natural infirmities of old age in the last months of her life. She had expressed a particular apprehension about living in a nursing home, and that apprehension was known to appellant. Appellant nevertheless told the testatrix that appellee planned to sell the family residence and move the testatrix to a nursing home, despite the fact that appellee had no such plans. Appellant also accused Debra Walker of trying to kill the testatrix, yet there was proof at trial that Walker had the testatrix's best interests at heart when she confiscated certain medicine that was no longer recommended by her doctors.

In In re Koller's Estate, 116 Neb. 764, 219 N.W. 4 (1928), the court said:

Undue influence may consist of setting up mental disturbances calculated to direct the mind into channels not normally proper or natural; arousing bitter feeling that would be unwarranted if the whole truth were known; a system of secret propaganda put on foot by broadcasting half truths so directed that they will, in all probability, reach the person to be affected to the injury or prejudice of another who is ignorant of what is going on and thereby deprived of an opportunity to place himself in a true light to prevent his undoing.

Id., at 771, 219 N.W. at 6.

The undermining and manipulative behavior that the trial court found was practiced by appellant, preying upon an elderly woman's fears and attributing sinister motives to those closest to her, is the type of malign influence that the law condemns. That the testatrix believed appellant's misrepresentations may be inferred from the fact that she became alienated from appellee, to whom she had been quite close, and subsequently made disproportionate gifts and bequests in favor of appellant's family. On the basis of the evidence presented, we cannot say that the probate judge's finding of undue influence was clearly erroneous.

Appellant argues further that because the testatrix was found to have the mental capacity to execute a will she could not have been unduly influenced. He relies on our frequent statement that questions of testamentary capacity and undue influence are so interwoven in any case where such questions are raised that we necessarily consider them together. See Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981). However, the fact that such questions of testamentary capacity and undue influence are interwoven does not mean they are one and the same. A person may have the recall, the lucidity, and the intellectual wherewithal to execute a will, yet his free agency may be overcome by the malign influence of another.

Appellant also contends that the probate judge erred in finding that he procured the will. To procure means to cause a thing to be done or to bring it about. See Neal v. Jackson, supra. According to appellant, there was no evidence below that he caused or brought about the execution of the testatrix's will.

We find it unnecessary to address this point. The probate judge found, in essence, that two grounds existed to support a finding of undue influence: procurement of the will and fraudulent misrepresentation. As we discussed earlier, the judge's determination that appellant exercised undue influence through fraudulent misrepresentation - a finding that exists independent of the finding regarding procurement - was not clearly erroneous. Therefore, the question of whether the judge erred in finding undue influence through procurement is moot.

Appellant argues further that, as a result of the finding of procurement, the judge improperly shifted the burden of proof and required appellant to prove beyond a reasonable doubt that the will was not the product of undue influence. We have recognized that, where a beneficiary procures the making of a will, a rebuttable presumption of undue influence arises and creates a burden on the proponent of the will to prove beyond a reasonable doubt that the will was not the product of undue influence. See Pyle v. Sayers, supra. However, this shift is merely a shift in going forward with the evidence. Id. The ultimate burden of proving undue influence remains on the party challenging the will. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). In light of the probate judge's finding that appellee met her burden of proving undue influence by exercise of a means other than procurement, the question of whether the judge erred in shifting the burden of going forward is also moot.

Appellant's final argument is that the trial judge erred in deducting $110,000 from the amount he was to receive from his mother's estate through intestate succession. The judge found that the same undue influence practiced by appellant concerning the will was practiced in relation to the $110,000 in gifts given by the testatrix to appellant's family in August and October 1997. Appellant contends that the court erroneously applied the law of advancements in deducting the $110,000 from his intestate share. An advancement is a gift that a parent intends to be charged against the donee's share of the parental estate if the donor should die intestate. Clement v. Blythe, 220 Ark. 551, 248 S.W.2d 883 (1952). Statutory law requires that an advancement must be declared in writing. Ark. Code Ann. § 28-9-216(a) (1987). Although the probate judge did not specifically state that he considered the gifts as advancements, he appears to have treated them as such. We agree with appellant that there is no evidence in this case that the testatrix intended her gifts to his family to be advancements, nor was there any writing declaring the gifts to be advancements. Further, even if the judge was merely invalidating the gifts on the ground of undue influence, neither that relief nor relief in the form of an advancement was sought by appellee in her pleadings. The judge granted relief on this matter sua sponte. The setting aside of the gifts was not relief requested by appellee, nor was it tried by the express or implied consent of the parties. Therefore, this aspect of the trial court's decision cannot be upheld on appeal. See Hackleton v. Larkan, 326 Ark. 649, 933 S.W.2d 380 (1996).

We affirm the probate court's finding that the will was invalid because of undue influence but modify the decree to delete the deduction of $110,000 from appellant'sintestate share of his mother's estate. The appellee has filed a motion seeking costs incurred in the preparation of a supplemental abstract. We award costs in the amount of $1,800.

Affirmed as modified.