Craig v. Craig

• Decision Date: 17 October 2018
• Docket Number: No. CV-18-82,CV-18-82
• Citation: 2018 Ark. App. 489,563 S.W.3d 560
• Parties: Ricky Lee CRAIG, Appellant v. Cheryl CRAIG, Jasen McDaniel, and Jacob Crawford Craig, Appellees
• Court: Arkansas Court of Appeals

2018 Ark. App. 489

563 S.W.3d 560

Ricky Lee CRAIG, Appellant

v.Cheryl CRAIG, Jasen McDaniel, and Jacob Crawford Craig, Appellees

No. CV-18-82

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: October 17, 2018

Rehearing Denied November 14, 2018

Appellate Solutions, PLLC d/b/a Riordan Law Firm, by: Deborah Truby Riordan, Little Rock, for appellant.

Tapp Law Firm, P.A., Hot Springs, by: Tylar C.M. Tapp III, for appellees.

ROBERT J. GLADWIN, Judge

Ricky Lee Craig, father of decedent Zerottie Lemans Craig, appeals the Garland County Circuit Court's July 21, 2017 order wherein the court admitted the decedent's October 18, 2003 last will and testament ("LWT") to probate and appointed appellant and Thomasena McNutt, the decedent's sister, as coexecutors of the estate. The court also found that the decedent's antenuptial agreement ("AA") removed his wife from the LWT but did not revoke the LWT or remove the residuary bequest to the decedent's stepchildren. On appeal, appellant argues that the circuit court abused its discretion by (1) declaring effective a residuary bequest when the condition precedent had not occurred, and (2) declaring the LWT effective when the later AA canceled it. We reverse and remand in part and affirm in part.

I. Facts

The decedent married Cheryl Craig on March 17, 2001. On October 18, 2003, the decedent executed his LWT, which provides in part:

5.1 Spouse Surviving: In the event my spouse survives me by 30 days, I give all of my property, whether real, personal or mixed, to my spouse.

5.2 Spouse Predeceased: In the event my spouse fails to survive me by 30 days, I give the residue of my estate in equal shares to Jasen Evan Lee McDaniel and Jacob LaRay DeWayne Crawford, my stepchildren/descendants, per stirpes.

The decedent and Cheryl divorced on January 3, 2011. However, on May 10, the decedent and Cheryl entered into an AA, which provides in part:

WHEREAS, both parties desire to define the interests which each other shall have in the respective estate of the other during marriage or after marriage, in the event of divorce between the parties, and after the death of one of the parties herein; and

WHEREAS, it is the desire and intention of the parties that their respective personal and real property and financial affairs and matters be finalized as between the parties herein, such that this Agreement shall settle and determine in all respects, each party's respective interest in and to the other party's past, present and future property rights, claims, demands and actions, obligations, debts, and any other matters relating to each respective party hereto, such that this document is conclusive and final and legally binding upon the parties hereto, and their respective heirs at law; and

WHEREAS, it is the specific intention of the parties herein that they shall, when and if they marry, continue in the marriage relation but in the event of death or legal separation of the parties hereto, that this document shall conclusively settle and be legally binding upon the parties hereto, that this document shall conclusively settle and be legally binding upon the parties herein, such that the property rights in such legal separation or divorce are decided as specified hereinafter, and determine by the terms specified herein; and

WHEREAS, both parties herein desire and agree to accept all of the provisions herein in lieu of all rights which he or she might otherwise acquire or be entitled to or inherit from the other, by virtue of separation, divorce or death; and

....

I.

First Party [decedent] now owns real property, securities, personal effects, automobiles and other personal property and property of a mixed nature which has been disclosed to Second Party [Cheryl] herein.... Any such property so acquired, as well as that property previously acquired prior to marriage and disclosed herein ... shall constitute the sole and exclusive property of First Party, and Second Party, by her signature herein on this Agreement hereby relinquishes all right, title and interest that she might now have or hereinafter have or acquire by law in said property of First Party. Second Party hereby released all rights in the property or estate of the First Party which she might have by reason of their marriage, whether by dower, statutory allowance, intestate share, election to take against his Will, or any other means by which she might acquire an interest, at law or equity, and under the laws of any jurisdiction which might be applicable to said property. Further it is the specific intention of Second Party that such release shall specifically allow First Party to provide that all such property owned by him shall, in the event of his death, pass to the named devisees or legal beneficiaries of First Party, or according to the terms of his Will or other legal instruments in effect at his death, and that in the event of divorce or legal separation or death, said property shall be the sole and separate property of First Party, whether he dies with or without a Will.

....

VII.

Both parties acknowledge to the other, by the signing of this Agreement, that in the event of the termination of the marriage relationship of the parties, by death, by legal proceedings or otherwise, that they will make absolutely no claim nor receive any interest in any part of the property, income or estate of the other party which was acquired before and/or during their marriage, or which arose out of all rights to that claim by reason of the marriage relationship, or other matters between the parties, other than as specified above. It is specifically understood that neither party shall take anything from the other's estate, and neither party has made, nor contemplates, any provision of the other in their respective Last Wills and Testaments.

The decedent and Cheryl remarried on May 14, 2011, and the decedent died on April 10, 2017, while they were still married.

On April 27, 2017, McNutt, the decedent's sister, filed a petition to open the decedent's estate and appoint herself as administrator. In the petition, McNutt alleged that Cheryl was statutorily prevented from serving as executrix of the estate. The applicable statute provides:

If, after making a will, the testator is divorced or the marriage of the testator is annulled, all provisions in the will in favor of the testator's spouse so divorced are revoked. With these exceptions, no will or any part thereof shall be revoked by any change in the circumstances, condition, or marital status of the testator, subject, however, to the provisions of § 28-39-401 [providing for a surviving spouse's election against a will].

Ark. Code Ann. § 28-25-109(b) (Repl. 2012).

On May 4, Cheryl filed a petition to probate the decedent's LWT and to be appointed personal representative, alleging that she was the decedent's wife and sole heir. On May 9, Cheryl filed an amended petition alleging that she, her two sons, Jasen McDaniel and Jacob Crawford—the decedent's stepsons—and the decedent's mother and father, Betty and appellant Ricky Craig, were the decedent's surviving heirs. Cheryl's sons each filed a consent for Cheryl to serve as executrix of the decedent's LWT. McNutt and appellant filed an amended and supplemented petition to open estate and appoint coadministrators, asking that they both be appointed coexecutors of the estate.

A hearing on the competing petitions was held on June 5. At the hearing, Cheryl for the first time provided the AA to appellant and McNutt. Appellant and McNutt moved to amend their petition, requesting that they be appointed coadministrators but asking that the LWT be held invalid pursuant to the AA and Ark. Code Ann. § 28-25-109(b). They claimed that the statute revoked the provisions to the surviving spouse in the LWT. Further, they argued that the AA revoked the LWT in its entirety. Thus, appellant and McNutt asked to be appointed coadministrators of the estate and that the decedent be declared to have died intestate. Cheryl agreed that the AA terminated her claim to the decedent's estate but argued that it did not affect the claim of her two children. She argued that the LWT was not fully revoked by the AA. The circuit court gave the parties twenty days to submit briefs on the issue.

In Cheryl's brief, she alleged that she was not seeking a claim against the estate and that she was acting on behalf of her sons. She argued that McGuire v. McGuire , 275 Ark. 432, 631 S.W.2d 12 (1982), is parallel to the instant case. The decedent in McGuire bequeathed property to his wife and named his stepchildren as the residual beneficiaries. When the decedent divorced his wife, the question became whether the stepchildren remained the residual legatees. Id. at 433, 631 S.W.2d at 13. Our supreme court held that the bequest to the former spouse was revoked in accordance with the statute, and the stepchildren were the proper parties to receive the property under the terms of the will. Id. at 434–35, 631 S.W.2d at 14.

Appellant and McNutt alleged that Cheryl had no standing to seek probate of the LWT or to be appointed administrator or executor because the AA precluded her from doing so. Under their agreement, Cheryl cannot have any interest in the decedent's property, and she is a stranger to the estate. Further, pursuant to Ark. Code Ann. § 28-25-109(b), all the provisions in favor of Cheryl were revoked when she divorced the decedent.

The circuit court issued a letter opinion on July 5 denying and dismissing Cheryl's petitions and appointing McNutt and appellant as coexecutors of the estate. The court's letter states in part:

Other than the revocation of the provisions in favor of Cheryl Craig, A.C.A. section 28-25-109(b) states no will or any part thereof shall be revoked by any change in the circumstances, condition, or marital status of the testator. A.C.A. section 28-25-109 [ (c) ] states when there has been a partial revocation, reattestation of the remainder of the will shall not be required.

Petitioners

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