DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA01-39

September 26, 2001

MARY INMON COGGINS AN APPEAL FROM PULASKI

APPELLANT COUNTY PROBATE COURT

FOURTH DIVISION [PDE98-1832]

V. HON. ROBIN MAYS, CHANCELLOR

DAVID INMON, Executor of the

Estate of FRED INMON, Deceased

APPELLEE AFFIRMED

This appeal arises from a will contest. A will executed on June 4, 1996, by Fred Inmon, now deceased, was admitted into probate and determined to be a valid will. Mary Inmon Coggins, the decedent's daughter, argues that the decedent lacked the mental capacity to execute his will. She maintains that the probate court erred 1) by concluding that the decedent possessed the requisite testamentary capacity; 2) by arbitrarily disregarding expert witness testimony; and 3) by assuming facts that were not part of the record in determining the decedent's testamentary capacity. We find no error and affirm.

The decedent has four other children: Donnie Inmon, Diana Inmon Akers, Melissa Inmon (a minor at the time the will was drafted), and David Inmon. David, the appellee, is the executor of the decedent's estate and trustee of the decedent's trust. The decedent diedon October 1, 1998. He suffered several strokes prior to his death including a stroke on May 29, 1996, six days prior to executing the will.

On June 4, 1996, while still hospitalized, the decedent executed a will and trust, an act witnessed by Ronnie Aultman and Linda Hudkins, two of the decedent's longtime friends. Also present were two attorneys from the Davidson Law Firm and a notary public. David, David's wife Karen, Donnie, and Diane were also at the hospital, but were not in the room when the will was executed. The will specifically lists David, Donnie, Melissa, and Diane as the decedent's children. The will does not list Mary as a child, but separately states that: "I have previously made significant provisions for Mary Inmon, and decline to make additional provisions for Mary Inmon in this my last will."

The decedent also listed Melissa as a child separately from David, Donnie, and Diane. He further provided that the rental proceeds from certain property in Jacksonville, Arkansas, would be distributed to Melissa until she reached age eighteen, and after she reached that age, that this property would revert to the remainder of the trust.

The decedent was transferred to a rehabilitation facility the same day the will was executed. On June 21, 1996, the decedent was released from the rehabilitation center and returned to live in his own home. He recovered quickly and had resumed normal activities of daily living, such as driving, within two weeks of his release. He died approximately two years later.

After the decedent passed away, appellee petitioned to have the will admitted to probate and petitioned to be appointed as administrator pursuant to the will. Appellantcontested the will, asserting that the decedent lacked the mental capacity to execute the will due to the stroke he suffered shortly before its execution. She further asserted that the will was invalid because she was not listed as a child of the deceased. Finally, she requested appointment as administratrix of the estate.

Dr. Vestal Smith, Jr., a psychiatrist who treated appellant, had no independent recollection of treating the decedent, but refreshed his memory with the decedent's medical records. Dr. Smith testified that as of June 21, the decedent had improved with regard to his ability to ambulate and to perform his activities of daily living. However, based on the neuropsychological tests, Dr. Smith opined at that time that the decedent was not in a position to manage his financial affairs and would require twenty-four-hour care. Dr. Smith testified that the decedent had moderate organic brain syndrome, which results in some memory problems and deficits in judgment. He offered no opinion as to testamentary capacity because there was no mention of that in his medical records.

Dr. Michael Chesser, a neurologist, examined the decedent on June 1, 2, and 3. According to Dr. Chesser, the decedent suffered from dementia related to his intracranial vascular disease, which affected his higher levels of thinking, problem-solving, reasoning and judgment as of June 1. He testified that when he examined the decedent on June 1, 1996, he was alert and oriented to person and place, but not as to time. Dr. Chesser noted that the decedent's "general fund of knowledge" was fair. He concluded that decedent's short-term memory was impaired and that he was having trouble storing information. He indicated that the stroke could have affected the decedent's ability to remember writtenwords, but he did not test the decedent's ability in that regard. Further, because Dr. Chesser did not assess the decedent's reasoning skills, he offered no conclusion as to what degree it was affected.

Dr. Chesser further testified that on June 1, the decedent was able to identify all of his family members and acquaintances and their relationships, but he did not think that the decedent could have processed the information contained in the will and trust documents. He opined that it would take a considerable amount of time after his stroke to be able to comprehend the will and trust documents in this case. While Dr. Chesser opined that at that time (June 1) the decedent would not have been able to retain complicated data or make complicated decisions, he conceded that he did not know what state the decedent was in three days later, when the will was executed. He further indicated that he did not know to what degree the decedent would have been aware of his different assets. He stated that over the natural course of a stroke, a patient would usually be a "little better" three days later, but agreed that it would be pure speculation for him to opine as to what the decedent's mental state was on June 4. Dr. Chesser also stated that the remote memory is the last thing to go, so that "[decedent's] memory for things that he had owned for years, or even months, would probably be in much better shape than his memory for what he ate for breakfast that day..." Finally, he testified the primary purpose for admitting the decedent into rehabilitation was due to his gait and balance problems and for speech therapy.

Dr. Bradley Diner did not treat the decedent, but reviewed all of the medical records in the case and testified as an expert witness on appellee's behalf. He stated that he had no reason to disagree with Dr. Chesser that the decedent had short-term memory loss, but he concluded that his long-term memory was intact. Dr. Diner stated that knowing one's children and ownership of a long-held asset would be long-term memory. He also stated thatlong-term problems in relationships would be retained in one's long-term memory.1 Dr. Diner noted that simply because someone needs assistance with the activities of daily living, such as making the calculations required to balance a checkbook, that "doesn't say anything about their testamentary capacity." He opined that the decedent knew who his children were because he had referred to them by name and because he recalled a piece of property that was apparently omitted from the will. Finally, Dr. Diner stated that short-term memory loss might affect a person's ability to memorize a document, but not to comprehend the document.

The attesting witnesses also testified. Linda Hudkins, a long-time friend of the decedent, testified that she met the decedent because he was a frequent customer of a restaurant where she formerly worked. Hudkins testified that she worked at the restaurant for seventeen or eighteen years and that she met the decedent "shortly after" she began working there. She had also taken her children to his house "a few times." She stated that Ronnie Aultman, her supervisor, told her that David said the decedent asked if they would be witnesses. Hudkins testified that when she went to the decedent's hospital room on June 4, 1996, the decedent was physically very weak, but "mentally, he knew me right away." She visited with him for about ten minutes prior to the execution of the will. According to Hudkins, the decedent recognized his children and talked to each of them by name in her presence on that day and he was aware of the nature and extent of his property, "like theback of his hand." She stated that the children were asked to leave the room before the will was executed.

Hudkins stated that appellant's name came up in the discussion and the decedent said that he was finished taking care of her and that she was provided for. Hudkins remembered that during the execution of the will the decedent mentioned a piece of property, which she could not identify at the hearing, that was not mentioned in the will. She said that the decedent wanted to make sure they knew about that piece of property. Hudkins indicated that when the Jacksonville property was mentioned, the decedent stated that he wanted to be sure that Melissa would receive the rent from that property.

She further testified that the two attorneys read the will to the decedent, page by page, and asked him if he understood, which he appeared to do, because he initialed the document. She stated that he held the pen on his own and initialed and signed the will on his own. Hudkins said that the decedent constantly said that he understood, that he knew what they were talking about, and that he knew what was going on. She described him as a "very intelligent man" who "stayed on top of it." She testified that the decedent "knew what he owned. I mean, even if it was half an acre, I think he would have known."

Hudkins visited "a little bit more" with the decedent after the will was signed. She estimated her total visit, including the time taken to execute the will, was thirty minutes to one hour. She indicated that she did not have any reservations about signing as a witness to his will.

Ronnie Aultman, Hudkin's supervisor, also witnessed the execution of the will. He testified that he had known the decedent for years because he was a frequent customer of the restaurant. Aultman described the decedent as very intelligent man who had a good ability to communicate.

He stated that David called and asked if he and Hudkins would be witnesses, since they were well-acquainted with the decedent. According to Aultman, the decedent knew him, his wife, and Hudkins as soon as they walked in the hospital room. He talked to the decedent for about ten minutes and also heard Hudkins talking to the decedent. Aultman said the decedent was not confused and did nothing to indicate that he did not understand what was going on. He testified that he had no doubts or reservations about the decedent's mental capacity or his ability to understand and process information. Aultman stated that he felt like the decedent understood everything as well as he had five years before.

Aultman also testified that one of the lawyers asked the children to leave the room before the will was executed. He stated that the decedent knew the two attorneys and that after each page was read, the decedent was asked if he understood. He indicated that at one point, the decedent looked at one attorney and looked at David, the decedent's son, and said that Melissa was getting the rent from property he owned in Jacksonville and, before he signed, he wanted to make sure that she was still going to receive the rental income from that property. The decedent was assured that she would receive the money. Aultman further stated that the decedent indicated that he had already taken care of Mary.

He estimated that it took fifteen to twenty minutes to execute the will and trust. Aultman further estimated that he was in the decedent's room for a total of thirty-five orforty minutes, including the fifteen to twenty minutes he stayed after the will was signed. Aultman testified that before he signed the will, he asked the decedent if he understood everything and the decedent indicated that he did.

The probate judge indicated orally that she felt Dr. Chesser's testimony was equivocal. She also noted that Dr. Smith had no independent recollection of treating the decedent, and stated that by relying on his notes to draw a conclusion, Dr. Smith was "doing the same thing" as Dr. Diner. The probate judge further stated that a substantial part of her decision was based upon the witnesses, who were able to compare the decedent's mental state before, during, and after the execution of the will. She found these witnesses to be credible, disinterested, and well-acquainted with the decedent before and after the execution of the will. Therefore, she found that appellant failed to establish that the decedent lacked testamentary capacity. The probate court ordered that David be appointed executor and that the will be admitted as the decedent's last will and testament. This appeal followed.

I. Testamentary Capacity

Appellant argued below that the will was invalid because the testator lacked testamentary capacity and because she was a pretermitted heir. On appeal, she argues solely that the decedent lacked testamentary capacity to execute a will.

We review probate cases de novo and will not reverse unless the probate judge's findings are clearly erroneous. See Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996); Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992). A finding is clearly erroneous if, although there is evidence to support the court's findings, the appellatecourt, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. See Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 33 (1999); Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998). We give due deference to the superior position of the probate judge in determining the credibility of witnesses, and the weight to be accorded their testimony. See Wells, supra; Looney, supra.

It has long been the law in Arkansas 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 was subject to undue influence when the will was executed. See Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001). The maker of a will has sufficient mental capacity to execute her will if she can retain in her memory, without prompting, the extent and condition of her property and to comprehend how she is disposing of it, to whom, and upon what consideration. See 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. See id.

We hold that the probate court did not err in finding that appellant failed to prove the decedent lacked testamentary capacity. It is true that the decedent was physically weakened. He was also elderly and infirm. He was hospitalized and had suffered a stroke six days prior to executing the will. As a result, he had trouble speaking and undisputedly had short-term memory problems. His son, the executor of his will and trustee/beneficiary of his trust, procured the witnesses, although allegedly at the decedent's request.

Nonetheless, there is sufficient evidence to support the probate judge's finding thatappellant failed to show that the decedent lacked testamentary capacity. There is no medical evidence regarding the decedent's mental state the day the will was executed. However, proof of mental capacity before and after the will's execution may be relevant as to a testator's mental condition at the time a will was executed. See Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). Dr. Chesser indicated that the decedent would have been able to remember his family and relationship, and could identify people and names without any problem, but would not have been able to comprehend and process the type of information contained in the will and trust. However, as noted previously, Dr. Chesser's testimony was equivocal. Further, his testimony was largely phrased in terms that apply to stroke victims generally, without precise application to the decedent's condition, because he apparently performed only one test to check the decedent's short-term memory function. He did not assess the decedent's reasoning skills and offered no conclusion as to what degree those skills were affected. Nor did he test the decedent's ability to remember written words. Finally, he testified that the decedent was referred to rehabilitation largely due to his physical infirmities and did not discuss the decedent's rehabilitative needs in the context of mental infirmities resulting from the stroke.

Dr. Smith ordered neuropsychological testing on the decedent. Based on the test results, Dr. Smith opined that as of June 21, 1996, the decedent required twenty-four-hour supervision and was not in a position to manage his financial affairs. He also opined that the decedent had moderate organic brain syndrome, which would cause a person to have significant problems with memory and deficits in judgment. Dr. Smith stated that thedecedent's cognitive status was better on June 21 than it was on June 4. However, he offered no opinion as to the decedent's mental capacity on the day the will was executed.

Dr. Diner did not disagree that the decedent suffered from short-term memory impairment. However, he testified that knowledge of one's children and assets would be stored in long-term memory and that short-term memory loss does not affect one's testamentary capacity.

The only testimony regarding the decedent's mental capacity on the day the will was executed was the testimony of Aultman and Hudkins. They both testified that the decedent knew who they were, knew who his children were, and that he appeared to be mentally alert. They further stated that the will was read to the decedent, that he was asked if he understood everything, and was told to initial the documents if he understood. They testified that the execution of both the will and the trust, a total of sixteen pages, took approximately fifteen to twenty minutes2 and that they visited briefly with the decedent immediately after the will was executed. Based on the foregoing, we hold that the probate judge did not err in holding that appellant failed to show that the decedent lacked testamentary capacity.

Appellant also claims that there was no testimony presented that the decedent on the day of execution was able to retain in his memory, without prompting, the extent and condition of his property, to comprehend what he was disposing of and to whom. Appellant,without citation to authority, would have us hold that the act of reading a will is prompting sufficient to negate testamentary capacity. However, merely because the decedent's lawyers read the will to him does not mean that the decedent did not understand the extent of his property and the manner in which he was disposing of it. To the contrary, the evidence supports the conclusion that the decedent was aware that he was executing a will. During the execution of the will, the decedent, without prompting, mentioned a piece of property that was omitted from the will because he wanted to be sure the property was mentioned before he signed the will. Further, when Melissa's name was mentioned, the decedent made clear his intention that she would receive the rent from the Jacksonville property. Finally, when appellant's name was mentioned, he orally indicated that he had already provided for her and did not intend to give her anything else.

We note that the terms of the will were fairly simple, and we defer to the superior position of the probate judge to weigh the evidence surrounding the execution of the will. Simply because a person is hospitalized and has recently suffered a stroke does not necessarily render him mentally incapable of executing a will.

II. Weighing of the Testimony

Appellant next argues that the probate court arbitrarily dismissed the testimony of two expert witnesses who testified on her behalf: Dr. Chesser, a neurologist, and Dr. Smith, a psychiatrist. Appellant argues that the probate judge erred in disregarding the expert testimony in favor of the lay testimony. She maintains that simply because the lay witnesses testified regarding the decedent's mental capacity before, during, and after execution doesnot mean the probate court can disregard the medical evidence. She asserts that in order for the court to reach its conclusion, it would have to have arbitrarily disregarded the medical testimony. Appellant argues that Aultman and Hudkins based their opinions regarding the decedent's mental capacity on the mere fact that the decedent knew who they were. She further argues that their testimony was inconclusive or contradictory. Appellee responds that the probate judge did not arbitrarily disregard any expert testimony. He further argues that the expert witnesses' testimony was contradictory and was properly weighed by the probate judge.

The law is clear that the trier of fact cannot arbitrarily disregard testimony. See Fireman's Ins. Co. v. Smith, 13 Ark. App. 250, 683 S.W.2d 234 (1985). However, we disagree that the probate judge disregarded any testimony.

Dr. Chesser asserted that the decedent could not have comprehended the will and trust on June 1, three days prior to the execution of the will, but he did not test the decedent's ability to remember written words. He also stated that it would be "pure speculation" on his part to opine if the decedent had the ability to comprehend all of the information in the will and trust on the day the will was executed. He further stated that he did not know to what degree the decedent would have been aware of his different assets. Dr. Chesser opined that the decedent's memory was severely impaired. Yet, he testified that on June 1, the decedent was able to identify all of his family members and acquaintances and their relationships; he also indicated that appellant's long-term memory would be in "much better shape" than his short-term memory. Moreover, he stated that knowledge of one's children and assets wouldbe stored in one's long-term memory. Therefore, the probate judge could have properly concluded that Dr. Chesser's testimony was equivocal.

Appellant is correct that it would be error for the court to disregard Dr. Smith's testimony simply because he had no independent memory of the decedent, because a witness is permitted to use a contemporaneously made memorandum where the witness had sufficient recollection when the memorandum was recorded. See Sweat v. State, 307 Ark. 406, 820 S.W.2d 459 (1991); Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). However, simply because the probate judge noted that Dr. Smith refreshed his memory with the medical records, it does not necessarily follow that she disregarded his testimony. Rather, the judge's comment that Dr. Smith had no independent recollection and was doing what "Dr. Diner is attempting to do" seems to indicate that she would weigh his testimony in the same manner as she did Dr. Diner's, who merely reviewed the medical records prior to testifying.

As previously noted, Dr. Diner's testimony conflicts with Dr. Chesser's and Dr. Smith's testimony in some key respects. Dr. Diner concluded that the decedent's short-term memory was impaired, which would affect his ability to manage his financial affairs. However, Dr. Diner indicated that the decedent's long-term memory was intact, and further, that short-term memory impairment "doesn't say anything" about a person's testamentary capacity. He concluded that the decedent had the requisite testamentary capacity to execute the will on June 4, 1996. Therefore, because the expert testimony was conflicting, it was the probate judge's duty to resolve the conflicting testimony, see Wells, supra, and we holdthat the probate judge's findings in this respect were not clearly erroneous.

Further, it was the probate judge's duty to weigh all of the evidence, including the lay testimony. Appellant argues that the court erred in accepting Ms. Hudkin's testimony because she responded, "I don't know" or "I can't say" approximately fifty-four times during her testimony. She further asserts that the court erred in accepting Mr. Aultman's testimony over Dr. Chesser's because Aultman testified that David was not in the room when the will was executed, yet he also stated that the decedent asked David if Melissa was getting rent from the Jacksonville property prior to signing the will.

Aultman's and Hudkin's testimony were consistent in that they stated that during the time the will was executed, shortly thereafter, and after the decedent was released, he acted with them just as he had always acted. They both testified that he was an intelligent man; that he recognized them; that he joked with them; that he knew who his children were (who were in the room at the time they visited him); and that he knew the nature of his property and how he wanted to dispose of it. Aultman also testified that before he signed as a witness, he personally asked the decedent if he understood everything, and the decedent said that he did. Both witnesses indicated that they did not have any misgivings about signing as witnesses. To the extent that Aultman's and Hudkin's testimony was inconclusive or contradictory, that is an issue of the weight to be given their testimony and therefore, was an issue for the probate judge to resolve. See Wells, supra. Based on their testimony, the probate judge could have properly found that they were credible witnesses. Therefore, we hold that the probate court did not err with regard to weighing the expert or lay testimony.

III. Assuming Facts not in the Record

Finally, appellant asserts that the probate judge made assumptions not based on evidence presented at the hearing. Specifically, she argues that the court assumed that the decedent procured the will and that he had prior discussions with the Davidson Law Firm regarding the drafting of the will. Appellee counters that the court was simply informing the appellant that the record was deficient as to whether the decedent was presented with this will for the first time on June 4, 1996.

In this regard, the probate judge stated:

I think there's some substantial evidence that is somewhat missing from this, and that is when did Mr. Inmon ask for the will to be prepared? And none of that is in the record. So, clearly, there was something going on before the will was drafted and executed, and - so the court's got some - no court can say it's exactly what's happening at the time that he executed it as to whether he is getting hit cold with the document. There is something that leads up to the preparation and the discussions regarding the will until the time that it's actually executed. So when you sit there and you would read a page to a testator, it's not that you're reading that page to him cold, that he's all of a sudden having to digest what's being read to him . . . But what I am saying is that you can't make the assumption that he's hearing the will and the contents of the will for the very first time that will is being read to him in that hospital room . . . Anybody who is executing a will has had a discussion about that will, in all likelihood, with his or her lawyer before the will is drafted. I don't know when that happened. I don't know whether Mr. Davidson has been Mr. Inmon's lawyer for twenty years, don't know whether he was his lawyer for twenty minutes. None of those things are in the record as leading up the execution of the will.

It is error for a trier of fact to reach a decision based on evidence not in the record. See e.g., Benson v. Shuler Drilling Co. Inc., 316 Ark. 101, 871 S.W.2d 552 (1994). Further, as the above statement by the probate judge clearly shows, she assumed that the testator procured the will and had seen or read it prior to its execution. However, the ultimate burden of proof in a will contest case is upon the party challenging the will. See Pyle v. Sayers, 344Ark. 354, 39 S.W.3d 774 (2001). Therefore, it was appellant's burden to present proof of procurement, and this appellant did not do. It is arguable that facts showing that the decedent was ill when the will was executed and that appellee procured the attesting witnesses raises the issue of whether appellee procured the will. However, this evidence was presented for the apparent purpose of proving undue influence, not procurement, because appellant did not argue below that the will was procured. Even after the probate judge issued her lengthy statement making it clear that she assumed that the decedent procured the will and was familiar with its terms prior to its execution, appellant offered no evidence, objections, or arguments to the contrary. Thus, to reverse based on appellant's argument that the probate judge made this assumption in error would, in essence, allow her to raise an argument that the probate judge had no opportunity to rule upon. It is well-settled that we do not consider issues raised for the first time on appeal. See Holloway v. Stuttgart Reg. Med. Ctr., 62 Ark. App. 140, 970 S.W.2d 301 (1998).

Affirmed.

Stroud, C.J., and Neal, J., agree.

1 Ms. Hudkins, an attesting witness, testified that the decedent and appellant had problems due to appellant's alleged drug use.

2 Appellant consistently asserts that the will contained thirteen pages and the trust document contained eight pages, for a total of twenty-one pages. However, our examination of the record reveals that the will and trust documents contained a total of sixteen pages.