Bell v. Hutchins

• Decision Date: 14 November 2007
• Docket Number: No. CA 07-78.,CA 07-78.
• Citation: 100 Ark. App. 308,268 S.W.3d 358
• Parties: Connie BELL v. Merrie HUTCHINS, in the Matter of the Estate of Alvin R. Hutchins, Deceased.
• Court: Arkansas Court of Appeals

268 S.W.3d 358

100 Ark. App. 308

Connie BELL v. Merrie HUTCHINS, in the Matter of the Estate of Alvin R. Hutchins, Deceased.

No. CA 07-78.

Court of Appeals of Arkansas.

November 14, 2007.

Tennille H. Price and Gary D. McDonald, El Dorado, for appellant.

Burbank Dodson & Barker, PLLC, by: Don B. Dodson, El Dorado, for appellee.

ROBERT J. GLADWIN, Judge.

Appellant Connie Bell appeals the June 28, 2006 judgment, of the Union County Circuit Court, finding that the last will and testament of decedent Alvin R. Hutchins, dated September 15, 2005, is invalid and setting aside the order admitting it to probate. Appellant contends that the circuit court erred in finding that she procured the will and that she had unduly influenced Alvin R. Hutchins to make the will. We reverse the circuit court's finding of procurement and remand for proceedings consistent with this opinion.

Mr. Alvin R. Hutchins lived in Arkansas for fifteen years prior to his death. During that time, his daughter, who lives out of state, did not visit him, but Mr. Hutchins made it known that his daughter would inherit all that belonged to him upon his death. Mr. Hutchins hired appellant Connie Bell to be his housekeeper in early 2005 after he had suffered some falls and had become too feeble to care for himself and his home. Mr. Hutchins did not own a washing machine or dryer prior to his hiring appellant, but bought a set and had them installed in appellant's home in order that she might wash his clothes. Mr. Hutchins did not drive, but after he hired appellant, he bought a brand new GMC pick-up truck, which appellant drove. Mr Hutchins also loaned appellant money for a deposit and first-month's rent on a house.

According to trial testimony, these purchases and financial transactions were out of the ordinary for Mr. Hutchins, who was said to have been frugal. His small house had no running hot water and no toilet facilities indoors. A wood-burning stove provided heat for the house. However, it was established at trial that Mr. Hutchins was generous with his church and helped people in need. Friends became concerned about Mr. Hutchins's spending when the washing machine, dryer, and truck were purchased.

Appellant made an appointment for Mr. Hutchins with attorney Teresa Wineland for September 15, 2005. On that date, appellant drove Mr. Hutchins to Ms. Wineland's law office and waited in the truck. Mr. Hutchins asked Ms. Wineland to draft a new will, leaving the washing machine, dryer, truck, and half of the remainder of his estate to appellant, with the other half of the estate going to his daughter. After Mr. Hutchins executed the will, appellant kept it in her possession.

Friends who picked Mr. Hutchins up for church on Sunday mornings testified that appellant would help him get dressed for church. However, the last few Sundays of his life, appellant did not help Mr. Hutchins get ready for church. On Sunday, October 2, 2005, Mr. Hutchins was found on the floor of his home by a friend. He had apparently fallen and had lain on the floor for several days. He was taken to the hospital where he died a week later. Three days after his death, appellant filed a petition to probate the September 15, 2005 will. The will was admitted to probate on October 12, 2005, and a motion to contest the will's admission was filed on November 28, 2005, by Merrie Hutchins, Mr. Hutchins's daughter.

After a hearing, the trial court found that appellant had procured the will, effectively shifting the burden from the will challenger, Merrie Hutchins, to the proponent of the will, appellant. Because of the finding of procurement, the trial court found that a rebuttable presumption of undue influence arose and that the burden of proof was on the appellant to prove beyond a reasonable doubt that the testator had both the testamentary capacity and the freedom from undue influence to execute a valid will. The trial court found that Mr. Hutchins had the mental capacity to execute the will on September 15, 2005. However, the trial court found that, based upon the facts, appellant failed to rebut the presumption of undue influence and declared the will invalid. This appeal follows.

We review probate proceedings de novo, but we will not reverse the trial court's decision unless it is clearly erroneous. Moore v. Sipes, 85 Ark.App. 15, 146 S.W.3d 903 (2004). A decision is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made. Walker v. Torres, 83 Ark.App. 135, 118 S.W.3d 148 (2003). When reviewing the proceedings, we give due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Moore, supra.

In a typical will contest, 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. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992). However, where a beneficiary under the will actually drafts or procures the will, a higher burden of proof is applied under Arkansas law:

In Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979), we held that the proponent of a will who is a beneficiary and who drafted the will or caused it to be drafted has the burden to prove beyond a reasonable doubt that it was not the result of undue influence and that the testator had the mental capacity to make the will. We again held in Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980), that where a beneficiary procures the making of a will, "it is incumbent upon those who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and actions as are requisite to render a will legally valid."

Park v. George, 282 Ark. 155, 159, 667 S.W.2d 644, 647 (1984). See also Short v. Stephenson, 238 Ark. 1048, 386 S.W.2d 501 (1965).

Appellant contends that the...