PACE v. STEELE ARKANSAS COURT OF APPEALS 524 S.W.3D 420 (ARK. CT. APP. 2017) Ralph and Wanda Steele.

PACE v. STEELE ARKANSAS COURT OF APPEALS 524 S.W.3D 420 (ARK. CT. APP. 2017) Ralph and Wanda Steele were married for seventy-five years. They had no children but had many nieces and nephews including Darrell Steele and Kathy Pace. Wanda died in March 2012. In November 2012, Ralph was injured in a fall. Doctors determined that Ralph needed surgery which was performed in December 2012. Ralph entered rehabilitation at HealthSouth Rehabilitation Hospital where he developed pneumonia. He was admitted to St. Bernards Medical Center and stayed there until January 2013 when he was returned to
PACE v. STEELE ARKANSAS COURT OF APPEALS 524 S.W.3D 420 (ARK. CT. APP. 2017) Ralph and Wanda Steele were married for seventy-five years. They had no children but had many nieces and nephews including Darrell Steele and Kathy Pace. Wanda died in March 2012. In November 2012, Ralph was injured in a fall. Doctors determined that Ralph needed surgery which was performed in December 2012. Ralph entered rehabilitation at HealthSouth Rehabilitation Hospital where he developed pneumonia. He was admitted to St. Bernards Medical Center and stayed there until January 2013 when he was returned to HealthSouth. Medical records indicated that Ralph had mild difficulty with appropriate decision-making and mild difficulty with his memory. Ralph signed a will during his second stay at HealthSouth in January 2013. The will was prepared by an attorney contacted and paid by Darrell and his wife Cora. Although the attorney met briefly with Ralph, the will was drafted based upon notes prepared by Cora stating that Ralph wished to leave all of his property to Darrell and Cora. The attorney was not present when Ralph signed the completed will in the presence of witnesses. Darrell and Cora were named as the primary beneficiaries of the will. Ralph was subsequently admitted to the Lawrence County Nursing Center. The admissions document noted that Ralph had waxing and waning capacity and is able to make decisions some of the time. The admissions document stated that Ralph did not suffer from dementia. However, the residentresponsibilities form dated February 2013 stated that Ralph was unable to sign/comprehend the form due to dementia. Ralph died in July 2013 at the age of ninety-four. In August 2013, Kathy asserted Ralph had died intestate and nominated herself as administrator of his estate. Cora and Darrell sought to admit Ralphs will to probate and requested to be appointed executors of Ralphs estate pursuant to the will. Kathy asked that Cora and Darrells petition be denied because she alleged that Ralphs will had been procured by fraud and undue influence. The trial court issued an order admitting Ralphs will to probate, and Kathy appealed to the Arkansas Court of Appeals. VIRDEN, JUDGE_The general rule in a will contest is that the party contesting the validity of the will has the burden of proving by a preponderance of the evidence that the testator lacked mental capacity at the time the will was executed or that the testator acted under undue influence. When a beneficiary procures the making of a will, a rebuttable presumption of undue influence arises, which places on the beneficiary the burden of going forward with evidence that would permit a rational fact-finder to conclude beyond a reasonable doubt that the will was not the product of insufficient mental capacity or undue influence. Procurement of a will requires actual drafting of the will for the testator or planning the testators will and causing him to execute it. [Kathy] argues that Cora and Darrell procured Ralphs will. We agree. We hold that, because Cora and Darrell procured Ralphs will, a rebuttable presumption of undue influence arose, and Cora had the burden of going forward with evidence from which a rational fact-finder could conclude beyond a reasonable doubt that Ralphs will was not the product of insufficient mental capacity or undue influence. The questions of mental competency and undue influence are so closely related and interwoven that we consider them together. In a case where the mind of the testator is strong and alert, the facts constituting undue influence must be far stronger than a case in which the mind of the testator was impaired, such as by disease or advancing age. Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty. 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. A testators age, physical incapacity, and partial eclipse of mind will not invalidate a will if he or she has the requisite testamentary capacity when the will is executed, also known as a lucid interval. Undue influence is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property. Undue influence may be inferred from the facts and circumstances of a case, and cases involving questions of undue influence will frequently depend on a determination of witness credibility. Arkansas courts look at many factors when deciding undue-influence issues, including the testators physical and mental condition, the opportunity of the beneficiary to mold the mind of the testator to suit his or her purposes, the existence of suspicious circumstances, and whether the property disposition is a natural one. [Kathy] states that the medical records are replete with evidence of [Ralphs] diminished capacity and dementia. She contends that Dr. Vellozo had certified that Ralph suffered from dementia and had observed that Ralphs mental capacity was waxing and waning. On the day Ralph signed his will, the nurses notes indicate that Ralph had mild difficulty with appropriate decision making and, shortly after he had signed the will, the notes indicate that Ralph had intense pain registering ten out of ten for which he was given hydrocodone. The relevant inquiry is whether Ralph had the requisite mental capacity at the time the will was signed. Dr. Vellozo indicated on February 1, 2013 – three weeks after Ralph had signed the will – that Ralph could not sign a section on the nursing-home admission contract regarding a residents responsibilities because he had dementia. There are, however, other medical records where the same doctor contradicted this by specifically indicating that there was no dementia diagnosis. Although the nurses notes indicate that Ralph had mild difficulty with appropriate decision-making and may have been suffering intense pain around noon, witnesses present on the day Ralph signed the will said that he had not appeared to be in pain; that he had recognized them; that he had not appeared to be confused; and that he had seemed alert and attentive. These witnesses said that Ralph seemed to understand what he was doing, that he was okay mentally, and that there did not appear to be anything wrong with Ralphs mind. Our supreme court has upheld mental competency at the time of the execution of the will even in the wake of evidence of some mental deterioration. Noland v. Noland, 956 S.W.2d 173 (1997). Second, [Kathy] argues that Cora and Darrell unduly influenced Ralph into leaving all his property to them. As support for this conclusion, she states that Cora and Darrell were in a position of trust with Ralph; that Ralph was old and vulnerable and had recently lost his wife; that Ralph was in a rehab hospital recovering from surgery at the time he executed the will; and that Ralph was dependent primarily on Cora and Darrell. While all these statements are true, they do not support [Kathys] assertion that Ralph was therefore unduly influenced by Cora and Darrell. A testators decision to favor a person with whom the testator had developed a close and affectionate relationship is not, in and of itself, proof that the favored beneficiary procured the will by undue influence. Considering testimony about Ralphs reference to all these other vultures – presumably referring to Ralphs other relatives – we note that the testator may take into account, when considering his duties to relatives, past neglect, indifference, estrangement, and the like. Further, while Ralphs age and physical condition are relevant factors to consider, we cannot say that they affected Ralph to the extent that his free will had been destroyed. Our de novo review of the record shows that Cora presented ample evidence from which a rational fact-finder could conclude beyond a reasonable doubt that Ralphs will was not the product of insufficient mental capacity or undue influence. The ultimate burden of proving lack of capacity or undue influence by a preponderance of the evidence remained on the party challenging the will. Based on our de novo review of the evidence, or lack thereof, we conclude, as the trial court did, that [Kathy] failed to meet her burden of proof by a preponderance of the evidence. Affirmed. CRITICAL THINKING What were the critical factors identified by the court with respect to undue influence in this case? ETHICAL DECISION MAKING How far should courts go to protect the elderly and infirm from undue influence?

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