Simpson v. Simpson, CV–13–75.

CourtCourt of Appeals of Arkansas
Citation432 S.W.3d 66,2014 Ark. App. 80
Docket NumberNo. CV–13–75.,CV–13–75.
PartiesTimothy Roger SIMPSON, as personal representative of the Estate of Edith Laverne Simpson, Deceased, Appellant v. Bobby SIMPSON et al., Appellees.
Decision Date29 January 2014

2014 Ark. App. 80
432 S.W.3d 66

Timothy Roger SIMPSON, as personal representative of the Estate of Edith Laverne Simpson, Deceased, Appellant
v.
Bobby SIMPSON et al., Appellees.

No. CV–13–75.

Court of Appeals of Arkansas.

Jan. 29, 2014.


[432 S.W.3d 68]


Dover and Zolper, by: Dennis M. Zolper; and Chrestman Group, PLLC, by: Keith L. Chrestman, for appellant.

Dick Jarboe, for appellees.


WAYMOND M. BROWN, Judge.

Appellant Timothy Roger Simpson, as the personal representative of the Estate of Edith Laverne Simpson, deceased, appeals the September 5, 2012 order of the Craighead Circuit Court setting aside Edith's May 8, 2006 will. 1 Appellant argues that the court erred by setting the will aside based on a finding of undue influence by appellant. We find no error and affirm.2

The facts necessary to understand the instant case are as follows. Julius and Edith Simpson were married for more than five decades and raised nine children during that time. On September 19, 2002, Mr. and Mrs. Simpson executed mirror-image wills. The assets of the estate were divided equally among seven children 3 and one child was specifically excluded,4 in the event that both spouses were deceased. Tammy Earnhart was appointed the personal representative of both wills. Julius died on July 28, 2005. Shortly after Julius's death, on August 3, 2005, Edith executed a durable power of attorney granting Timothy and Tammy joint power. On April 21, 2006, Edith called her attorney, Charles M. “Skip” Mooney, Sr., and advised that she was destroying the original will. On May 8, 2006, Edith executed a will revoking the 2002 will. In the May 8, 2006 will, Edith specifically excluded appellees. She left her entire estate, including over seven hundred acres of farmland, to appellant. She also granted

[432 S.W.3d 69]

appellant the sole power of attorney. Edith died on April 15, 2010, at the age of eighty-four.

On April 23, 2010, appellant filed a petition to probate the May 8, 2006 will, and to be appointed personal representative according to the terms of the will. He accepted the appointment on the same day. An order admitting the will to probate was entered on April 26, 2010, and a letter of administration was filed on that date. Appellees filed a notice objecting to the probate of the will on June 28, 2010. They contended that the 2006 will was the result of fraud and/or undue influence based on threats made by appellant and the fact that appellant and Edith had a confidential relationship. They also sought to have the 2002 will probated and a personal representative appointed. Appellant denied the material allegations of appellees' objection in his response filed July 12, 2010. Amendments to the objection were filed on September 1, 2011, and October 24, 2011.

A hearing took place on November 2, 2011. Appellant testified that he was the youngest child of the family; that he never picked cotton on the family farm; that his parents supported him until their deaths; that he had Graves' disease; and that at one time he hated Tammy. He stated that Tammy visited Edith on major holidays, but that she never came back after 2005. He said that Phyllis visited Edith after 2005. Appellant denied breaking Edith's windshield because he was upset that he and Tammy were jointly granted power of attorney. He also denied making statements to Edith threatening Tammy's life. Appellant stated that Edith was angry with Tammy, Dennis, and Bennie because they tried to have him locked up. Appellant testified that he fired a shotgun inside the house, striking a television, during a suicide attempt. He also stated that he destroyed the refrigerator with his bare hands, and buried a freezer in the yard. However, he denied shooting out a window in the house. According to appellant, this all took place in January 2006, and Edith was home at the time. Appellant admitted that on February 3, 2006, he took approximately fifty pills and then attempted to drive to Walnut Ridge with Edith in the vehicle. He wrecked the car and was subsequently arrested for driving while intoxicated (DWI). Following his arrest, appellant was placed in Mid–South Health Systems' Crisis Unit for substance abuse and mental health diagnosis/treatment.

Appellant testified that Tammy introduced him to marijuana when he was only nine years old. He denied making a statement to his counselor that he was introduced to drugs at age ten by one of his older brothers. He stated that when he told the counselor at Mid–South that marijuana and alcohol were his drugs of choice and that he spent his days drinking until he passed out, he was speaking about the past. Appellant said that he told his counselor that everyone was scared of him on July 6, 2006. He admitted that he told his counselor on July 27, 2006, that he had awakened with blood on his face and thought that he had killed someone. He also stated that he told his counselor on August 11, 2006, that his mother had recently taken everyone out of her will except him. He, however, denied telling his counselor that he was glad that he had “screwed” appellees out of everything. He contended that he did not do anything to cause Edith to change her will in his favor. Appellant testified that he did not learn about changes to Edith's will until the summer. He opined that appellees did not love Edith and that they hated their father. Appellant admitted that he told Edith that Tammy physically abused him when he was younger, including trying to smother him, but he insisted that he made

[432 S.W.3d 70]

this disclosure over twenty years ago. According to appellant, Edith did not trust Tammy after 2006.

On cross-examination, appellant stated that he did not remember his parents being angry with any of his siblings, with the exception of Bobby. He testified that none of his siblings came and helped Edith around the house after their father died. Appellant stated that he never discussed business with his mother; however, he said that she did ask his input during the last couple years of her life. He testified that despite Edith's physical problems, she had a pretty good memory. He denied ever seeing her delusional. Appellant stated the Edith was not afraid of him and that he never hurt her. He denied ever threatening the appellees to their face. He testified that he never locked the appellees out of Edith's house.

On redirect, appellant admitted that he worried Edith, but he denied ever physically hurting her or putting her in danger. He stated that he had a problem with profanity and would use it around Edith, but that he did not direct it toward her.

Kay Simpson, Bennie's 5 wife, testified that Bennie was very close to his parents. According to Kay, they visited Edith's farm about three times a week. She also stated that Bennie performed chores for his parents, including putting in a new door and working on the hot-water heater. She said that Bennie added a garage and a bathroom to the house in 2005. She testified that they visited the Simpsons on every major holiday. However, Kay said that all changed around Christmas 2005. She said that, around Christmas 2005 she removed a blanket from a television that had been shot. According to Kay, a window in the den had also been shot before. Kay testified that Edith called her on March 6, 2006,6 and told her that they were not to come back until appellant settled down. Kay stated that they went over to Edith's that day and that Edith was acting nervous and trying to make sure appellant was not coming around. She said that she continued to call Edith and ask if they could come visit, to which Edith would reply that she did not know. Kay stated that she went into Edith's house after appellant was arrested and that the house was “a mess.” She testified that, while over there, Edith told Bennie that her estate “will be divided equally between all kids.” Kay stated that she did not know how the conversation came up. Kay also stated that she had heard Edith say in the past that she would not leave everything to one child. She said that when they left Edith's house, Bennie removed the firearms. She stated that Edith came to their house in August 2006 to retrieve the guns. She said that Bennie turned the guns over to Edith when she stated that she did not know what appellant would do. Kay stated that Edith returned in September 2006 to retrieve a gun that had not been returned in August. She said that they went to take some turnips to Edith, but Edith met them outside in the cold. Kay testified that when she would call Edith after March 2006, Edith would be “mumbly.”

On cross-examination, Kay stated that she had not personally heard appellant threaten her or Bennie. She also said that appellant never personally told her or Bennie that they could not come to Edith's house. She testified that she did not really have any direct contact with Edith except

[432 S.W.3d 71]

for the two times Edith came to retrieve the guns after March 2006. She said that all of the appellees gathered at her home after the will was read to discuss it.

Bennie testified that he grew up working on his parents' farm. He stated that after he moved, he visited them about three times a week. He said that he worked on his parents' doors, water heater, and wiring. Bennie stated that he had a good relationship with his parents and that Tammy did, too. He said that he really did not have a relationship with appellant because every time they would go over there, appellant would either go outside or to his room. Bennie said that Edith told him that appellant had destroyed the icebox, deep freezer, and microwave. He stated that Edith admitted that appellant had shot out a window in the house. According to Bennie, Edith also told him that appellant knocked out her car window with his fist after she initially told everyone that a rock had damaged the vehicle. Bennie stated that Edith never told him that appellant had threatened anyone. He said that he went to Edith's house a couple...

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8 cases
  • Darr v. Billeaudeau
    • United States
    • Court of Appeals of Arkansas
    • January 24, 2018
    ...between a primary beneficiary and a testator gives rise to a rebuttable presumption of undue influence. Simpson v. Simpson , 2014 Ark. App. 80, at 25, 432 S.W.3d 66, 81. A confidential relationship arises between a person who holds power of attorney and the grantor of that power. Shepherd ,......
  • Sharp v. Sharp
    • United States
    • Court of Appeals of Arkansas
    • November 12, 2014
    ...between the testator and the primary beneficiary, then a rebuttable presumption of undue influence arises. Simpson v. Simpson, 2014 Ark. App. 80, 432 S.W.3d 66 ; Medlock v. Mitchell, 95 Ark.App. 132, 234 S.W.3d 901 (2006). Gary does not allege that any of these burdens of proof or persuasio......
  • Harbur v. O'Neal
    • United States
    • Court of Appeals of Arkansas
    • February 19, 2014
    ...of the trial court judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Simpson v. Simpson, 2014 Ark. App. 80, 432 S.W.3d 66; Pyle, supra. Whether a trust was procured by undue influence is a question of fact for the trier of fact. Medlock, supr......
  • Graham v. Underwood
    • United States
    • Court of Appeals of Arkansas
    • October 4, 2017
    ...mind of the testator is impaired either by some inherent defect or by the consequences of disease or advancing age. Simpson v. Simpson, 2014 Ark. App. 80, 432 S.W.3d 66.1. Undue influence The influence that the law condemns is not the legitimate influence that springs from natural affection......
  • Request a trial to view additional results

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