ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION I

JANICE CLARK

APPELLANT

V.

CHESTER L. WETZEL

APPELLEE

CA 01-248

October 17, 2001

APPEAL FROM THE POPE

COUNTY PROBATE COURT,

[P-99-188]

HONORABLE RICHARD E.

GARDNER, JR., PROBATE JUDGE

AFFIRMED

Janice Clark appeals the decision of the Pope County Probate Court to admit the March 3, 1998, will of Jessie Marie Mitchell Taylor to probate. That will appointed appellee, Chester L. Wetzel, as executor of Taylor's estate. On appeal, Clark argues that at the time the will was executed, Taylor lacked testamentary capacity and that the will was the product of undue influence by the Wetzel family. We affirm the decision of the probate court.

Taylor died on August 15, 1999, at the age of eighty-seven, in Pope County, Arkansas. On August 23, 1999, Clark, Taylor's niece, filed a petition to administer Taylor's estate and requested to be appointed personal representative of the estate. An order opening the estate for administration and appointing Clark as personal representative of the estate was

entered on September 8, 1999, and letters of administration were issued to Clark on September 9, 1999.

On September 16, 1999, Chester Wetzel filed a petition to set aside the order appointing Clark as administrator, alleging that Taylor had a March 3, 1998, will that named him as executor of the estate, a copy of which he attached to the petition. This will provided that all of Taylor's estate was to go to Donna Sue Wetzel, Chester Wetzel's wife. Clark filed a response to Wetzel's petition on October 14, 1999, denying that she had any knowledge of the will and denying that the probate court should vacate the order appointing her the administrator of the estate. She further asserted that the will should not be admitted to probate without first holding a hearing to determine Taylor's testamentary capacity.

On August 4, 2000, Wetzel filed an amended petition asking the probate court to set aside the order appointing Clark as personal representative of Taylor's estate, to admit Taylor's March 3, 1998, will to probate, and to appoint him as executor of Taylor's estate. Clark filed her response on August 14, 2000, asking the probate court to deny Wetzel's petition. A hearing was held on October 13, 2000. The probate judge issued his decision in an October 31, 2000, letter opinion, finding that Taylor was not subject to undue influence in making her will and that she had the testamentary capacity to make a will. A nunc pro tunc order to that effect was entered of record on December 5, 2000. The order also admitted the will to probate, removed Clark as the personal representative, and appointedChester Wetzel as executor of the estate. Clark filed her notice of appeal the same day the nunc pro tunc order was entered.

At the beginning of the October 13 hearing, the deposition of William Smith, the attorney who drafted Taylor's March 3, 1998, will, was entered into evidence as petitioner's exhibit one. He stated that Taylor contacted him by telephone about preparing a power of attorney and a will. Taylor told him that she had a niece and nephew, but she wanted to leave all of her property to her caretakers, Donna Sue and Chester Wetzel, for the kindness and care they had given to her. She also wanted a clause in the will that provided for only one dollar for anyone who contested the will. Although he discussed with her the potential problems that might be created by such a will, Smith said that Taylor was "quite adamant" about what she wanted. Smith recommended that Taylor get a physical examination by a doctor of her choice either on the day she signed the will or in close proximity to that date. Smith said that the will was a "pretty standard" will, and he believed that Taylor knew who she was, what her property was, and what she wanted to do with her property during his discussions with her. However, Smith was not present during the execution of the will on March 3, 1998.

At the hearing, Jo Ann Conley, Smith's legal secretary, testified that she prepared Taylor's will in accordance with the notes Smith had given her. She was a witness to the execution of Taylor's will, and although she was only with Taylor for approximately thirty minutes on the date of execution, she said that she noticed nothing unusual in Taylor's demeanor for a person of her age. She said that Taylor acknowledged that the instrumentwas her will and that it was prepared according to her instructions. Conley said that the will was read to Taylor, but she could not remember if she read the will to her or if someone else read it to her. Conley stated that Taylor was accompanied at all times by Donna Wetzel.

Linda Louise Ervin testified that she witnessed Taylor execute the will, but she did not remember the will being read to Taylor. Ervin remembered Taylor as a small lady in a wheelchair, and she said that Taylor seemed to know what she was doing.

Donna Sue Wetzel, the sole beneficiary under Taylor's will, testified that she first met Taylor through her mother in 1993. In the spring of 1994, she began providing in-home companion services for Taylor, for which she would receive compensation in the form of gifts. Ms. Wetzel said that her parents, sisters, daughter, and her daughter's boyfriend all provided companion services to Taylor from 1995 until Taylor died in 1999.

Ms. Wetzel said that she first learned about the contents of Taylor's will when they were at Smith's office for Taylor to execute it, and that Taylor had never discussed her estate with her. She acknowledged that Taylor moved into her house in November 1997 and that the will was executed on March 3, 1998. Ms. Wetzel said that she was present when Taylor executed the will, and she understood that she was the sole beneficiary of Taylor's estate under the will. She did not object to the contents of the will, nor did she tell Taylor that she should provide for her niece and nephew. Ms. Wetzel said she thought Taylor knew who she was and what she owned at the time she executed her will. Ms. Wetzel said that on the day Taylor executed her will, she also signed a deed giving Clark a house.

Ms. Wetzel said that Clark would visit Taylor approximately once a month, and she had seen Billy Mitchell, Taylor's nephew, only three times. She said that Clark never did anything to help Taylor, and Taylor never exhibited any emotions for Clark. Ms. Wetzel said that neither Clark nor Mitchell offered to take over Taylor's care, but she also said that Clark had offered to take care of Taylor if she was paid to do so, which Taylor rejected. She said that Taylor told her that she was happy with the care the Wetzels gave her. She said that when Clark learned that Taylor had given Chester Wetzel Taylor's power of attorney, Clark became upset and said she would not come back anymore.

Rustina Jones, the Wetzels' daughter, testified that she provided companion services to Taylor, and she received gifts in return. She said that Taylor loved for her and her children to visit with her. She stated that she had discussed with Clark her desire to care for Taylor, but Taylor refused this idea.

Thomas Pennington, a family friend of Taylor's, testified that due to Taylor's increasing inability to handle her financial affairs, he was her attorney-in-fact from 1995 until February or March of 1997. He said that during this time, he would pay her bills, balance her checkbook, and handle all of her business affairs. He also paid Taylor's caretakers for the services they performed, including the Wetzels. He stopped being Taylor's attorney-in-fact in 1997 because he could not agree with the manner in which Taylor was spending her money, and she refused to cooperate with his suggestions. Pennington stated that when he resigned his duties as attorney-in-fact in early 1997, Taylor was bedfast and could not walk on her own.

Pennington testified that Taylor was a very generous woman, assisting his father with medical school tuition and making monetary gifts of $20,000 each to his father and his uncle in 1995. He said that Taylor understood what she had and what she wanted to do with her money, and that she could be very assertive about her money and had no trouble formulating an opinion about something. He did not believe that Taylor was incompetent at the time he ceased being her attorney-in-fact in early 1997. He said that he had spoken with Taylor about Clark taking over the business affairs for her when he resigned, but Taylor did not want that to happen.

Don Pennington, Thomas Pennington's father, testified that Taylor had begun renting a room in his parents' house in 1943 and did so until the mid-1950s, and he always referred to Taylor as Aunt Jessie. He testified that Taylor was the county extension agent in Johnson County for thirteen years before going to work in East Pakistan for two years; her trips overseas lasted about two years, and she would come home and stay with them for three to six months. He recounted her generosity over the years, stating that she bought him several cars, paid for his piano lessons, and paid his tuition to medical school. He said that she was equally generous with his brother, and that she had given both of them $20,000 in 1994.

Dr. Pennington stated that although he was not her treating physician, he followed Taylor's medical condition over the years, and that she became concerned about dizziness and her difficulty remembering things for the last three years of her life. He said that Taylor's physical and mental well-being were failing during that time, and he noticed that Taylor withdrew from everyone. For the three months prior to March 3, 1998, and for thethree months after that date, he would visit Taylor once every couple of months, and sometimes she would not converse at all; she did not have much to say the last three or four years of her life. However, he acknowledged that without medical testing, he did not know whether Taylor was not speaking to him as a result of "giving up" or if she just did not want to speak. He also said that he did not know if she was depressed or had signs of organic brain syndrome, either of which could have caused her to be noncommunicative.

Dr. Pennington said that he took Taylor to see Len Bradley in 1994 to make a will. He testified that in that will, Taylor left her family farm in Cross County to Billy Mitchell and the property in Johnson County to Clark. When Taylor gave him the $20,000 gift, Dr. Pennington suggested that she leave him the money in her will, but she said that she was not sure she trusted wills. He asked her about Mitchell and Clark, and Taylor told him that she was leaving Mitchell the farm and Clark the property in Clarksville.

Billy Mitchell testified that his relationship with his aunt was distant because they did not live in the same area, but that it was good. He said that from the time he was fourteen or fifteen, Taylor had indicated to him that the land in Cross County would go to him at her death, and she had reaffirmed that many times over the years. He also said that Taylor told him that Clark was to get the Johnson County property. He acknowledged that he had only seen Taylor five or six times during the last ten years of her life, and that Taylor had paid for two years of his college tuition and had given him over four and one-half acres of land.

Appellee Chester Wetzel testified that Taylor executed a warranty deed, which he prepared, giving him a house on December 17, 1997, while she was living in his house. Hesaid that this was in payment for him agreeing to be her attorney-in-fact, even though he did not receive the power of attorney until March 3, 1998, the same day Taylor executed her will. He also acknowledged that although he held the power of attorney, Ms. Wetzel wrote the checks, and he just oversaw the account. He said that sixty days prior to executing her will, Taylor needed help because she was not able to write checks any longer. However, he said that up until the day she died, Taylor knew exactly what was happening.

With regard to the will, Mr. Wetzel said that Taylor asked him if he knew an attorney, and he gave Taylor the name of Smith, who had previously done legal work for him. Mr. Wetzel said that he called Smith's office at Taylor's request, but then he said that Taylor did not ask him to call Smith. When on the phone with Smith, Taylor told Mr. Wetzel that she wanted to talk to Smith alone, so he left the room. He was not present at the time Taylor's will was executed.

Janice Clark testified that after she left college, she moved to the state of Washington, where she lived for thirty years. During this time, she only saw Taylor about once a year. She said that she visited Taylor in 1994, and at that time, Taylor asked her husband to be the executor of her estate and for her to be her power of attorney. Taylor told them that she was going to give them the "yellow house," and Clark moved to Clarksville in May 1996. She said that the purpose of the move was to be near her mother and mother-in-law, but since Taylor was declining, they decided to move to Clarksville. She said that she made efforts to help Taylor, to no avail. She complained that she was never allowed to visit with Taylor alone, that there was always someone there. She said that after Taylor moved in with theWetzels, she only saw her once a month. She also acknowledged that Donna Wetzel delivered the deed to her for the yellow house, signed the same day Taylor executed her will.

Probate proceedings are reviewed de novo on the record. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987). The decision of a probate judge will not be disturbed unless it is clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Id.

Appellant concedes that there is testimony in the record to support the probate judge's decision; however, she still contends that the decision to admit the will to probate was clearly erroneous because Taylor lacked testamentary capacity and she was unduly influenced by the Wetzels in the execution of her March 3, 1998, will.

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 that the testator was the victim of undue influence when the will was executed. In re Estate of Davidson, 310 Ark. 639, 839 S.W.2d 214 (1992). Our supreme court has often stated that the questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considers them together, for in one case where the mind of the testator is strong and alert, the facts constituting undue influence would be required to be stronger than in another case where the mind of the testator was impaired either by some inherent defect or by the consequences of disease or advancing age. Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001). Therelevant 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. If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without promptings, 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. Baerlocker v. Highsmith, 292 Ark. 373, 730 S.W.2d 237 (1987). Influence by a person over the maker of a will "becomes `undue,' so as to invalidate the will, only when it is extended to such a degree as to override the discretion and destroy the free agency of the testator." Id. (quoting Edwards v. Vaught, 284 Ark. 262, 681 S.W.2d 322 (1984)).

In the present case, we cannot find that the probate judge's decision to admit the will to probate was clearly erroneous. As conceded by the appellant, there is certainly evidence in the record to support this decision. All of the persons who saw Taylor execute her will testified that she appeared to know what she was doing at the time of the execution. The attorney to whom Taylor spoke about preparing her will testified that Taylor knew what she had and to whom she wanted to leave her property, and he said that she was adamant about leaving her estate to the Wetzels instead of her niece and nephew. This evidence supports a finding of testamentary capacity on the part of Taylor at the time she executed her will on March 3, 1998.

Likewise, although Taylor lived with the Wetzels from November 1997 until her death in August 1999, and she deeded two houses to them during that time and executed awill in favor of Donna Wetzel in March 1998, the finding that there was no undue influence exerted on Taylor at the time of the execution of her will is also not clearly erroneous. From 1993 forward, the Wetzels provided constant companion services for Taylor, and they even opened their home to her for approximately the last two years of her life. There was evidence that she did not have a close relationship with either her niece or her nephew, and they did not visit her often during the last years of her life. There was also evidence that Taylor did not want Clark to care for her or handle her financial affairs. It appears that Taylor desired to leave her property to the people who cared for her most during her declining years -- the Wetzels. We cannot say that the probate judge's decision to admit the will to probate was clearly erroneous.

Affirmed.

Hart and Jennings, JJ., agree.