Gustin v. Trotter (In re Estate of Jelinek)

• Court: Arkansas Court of Appeals
• Writing for the Court: N. MARK KLAPPENBACH, Judge
• Citation: Gustin v. Trotter (In re Estate of Jelinek), 2018 Ark. App. 618, 566 S.W.3d 156 (Ark. App. 2018)
• Decision Date: 12 December 2018
• Docket Number: No. CV-18-318,CV-18-318
• Parties: In the MATTER OF ESTATE OF Robert M. JELINEK, Jr., Deceased Marie Gustin, Appellant v. Angela Trotter, Appellee

2018 Ark. App. 618

566 S.W.3d 156

In the MATTER OF ESTATE OF Robert M. JELINEK, Jr., Deceased

Marie Gustin, Appellant

v.Angela Trotter, Appellee

No. CV-18-318

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered December 12, 2018

Richard E. Worsham, Little Rock, for appellant.

Satterfield Law Firm, Little Rock, by: Guy "Randy" Satterfield, for appellee.

N. MARK KLAPPENBACH, Judge

Appellant Marie Gustin appeals the December 11, 2017 order of the Pulaski County Circuit Court denying her motion to set aside the February 6, 2017 will of the decedent, Robert Jelinek, Jr., who died on February 19, 2017. Gustin contended that the decedent's will was procured by appellee Angela Trotter and was the product of Trotter's undue influence over the decedent, but the probate court rejected Gustin's contentions. On appeal, Gustin argues that the probate court clearly erred in finding that Trotter did not exert undue influence over the decedent. We affirm.

We review probate matters de novo but will not reverse the circuit court's findings of fact unless they are clearly erroneous. Shepherd v. Jones , 2015 Ark. App. 279, 461 S.W.3d 351. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. We must also defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. Darr v. Billeaudeau , 2018 Ark. App. 16, 541 S.W.3d 460.

The evidence presented to the probate court revealed that Jelinek met Trotter and her husband-to-be, Jimmy Wood, in April or May 2016. Jelinek, a man in his early sixties, was a widower with no children; he was described as a free spirit and an old hippie. His parents were deceased, and his only remaining relatives were two cousins, one of whom is appellant Gustin. Jelinek and Gustin had not seen each other in years.

Wood and Trotter met Jelinek because Wood had worked on remodeling a house in Texas that Jelinek had sold. Trotter and Wood helped Jelinek move some of his belongings from Houston to his parents' home in Little Rock, and the three became close friends. In September 2016, Trotter and Wood moved in with Jelinek in his Little Rock home. Trotter did all the household cooking, cleaning, and shopping, and she drove Jelinek (who did not have a driver's license due to DWIs) as needed, including to doctor appointments and back and forth to Texas. Trotter did not work; she received $735 per month in disability benefits for her bipolar disorder. Wood did repairs around the house. Neither of them was paid for these services, but Jelinek provided them a place to live.

In November 2016, Jelinek was diagnosed with Hodgkin lymphoma. Trotter believed that, up to that point, Jelinek had some depression, a heavy smoking habit (cigarettes and marijuana), and a history of alcoholism, but no other major physical or mental ailments.

Jelinek contacted his attorney, Guy "Randy" Satterfield, to draft a power of attorney to name Trotter as his attorney-in-fact. Wood drove Jelinek to the attorney's office, and Trotter rode with them, but she remained in the waiting room for the duration of Satterfield's meeting with his client. This power of attorney was executed on November 14, 2016.

On January 11, 2017, Trotter took Jelinek to the hospital because he had shortness of breath. Jelinek's primary diagnosis on admission was pneumonia, but the medical records revealed additional medical issues, including COPD, septic shock, his cancer, MRSA, and an acute lower gastrointestinal bleed. Trotter spent almost all her time with Jelinek during his hospitalization, leaving only to shower. On February 6, 2017, Jelinek's doctors advised him to get his affairs in order very soon. He was in respiratory failure due to end-stage lung disease. Jelinek wrote a note to Trotter to call Satterfield.¹ Satterfield arrived the same day and drafted Jelinek's will while Trotter waited in the hallway. The will was executed the same day, and the two witnesses were Jelinek's accountant, Deborah Minor, and Satterfield. Trotter was not present during the signing of the will.

Minor had been the accountant for Jelinek's parents, and she worked for Jelinek as well. Minor had concerns and suspicions about Trotter, but in her view, Jelinek never wavered on the bequests he wanted to make. She recalled a conversation long before his hospitalization wherein Jelinek said he wanted to give something to the people who had taken care of his mother. Minor was confident that when she witnessed the will, Jelinek understood the contents of the will as written and that he was competent when he executed it.

Trotter said she was unaware that she was a beneficiary, but the medical notes indicated that Jelinek did inform Trotter that she would be the beneficiary of his will. Jelinek was transferred to a hospice facility on February 9, and he died on February 19, 2017.

Trotter informed Satterfield of Jelinek's death, and the will was read to Trotter and Wood. Trotter was the primary beneficiary of the will, receiving Jelinek's house in Little Rock and the residue of his entire estate including a family trust. Jelinek made other specific bequests to friends, neighbors, his mother's caretakers, and the caretakers' church, none of whom had any relationship to Trotter.² Trotter filed a petition to probate the will and appoint herself as administratrix on March 8, 2017, and it was admitted and approved in an order filed on March 9, 2017.

In May 2017, Gustin, one of Jelinek's two surviving first cousins, filed a petition to set aside the order admitting the will to probate. Gustin argued that Trotter (1) had procured the will and (2) had exercised undue influence over Jelinek prior to his hospitalization, given his ill health and her short-term-but-close relationship with him. There was no contention that Jelinek lacked capacity to execute the will because he was sharp and alert up until his death, and Gustin conceded that there was no undue influence exerted on February 6, 2017, the date the will was created and executed.

Gustin had not seen Jelinek since 1976, although she claimed that she and Jelinek grew up in a close-knit Catholic family. Gustin lived out of state and had not visited Jelinek, but she said that she kept in touch with cards, letters, and texts. Jelinek's mother had died in 2015, and Gustin was a beneficiary of her will, but Gustin did not attend her funeral because she did not learn of her death until after the fact. Gustin said that Jelinek had written to her about his mother's death and had written down his cell phone number. Gustin believed that Jelinek was an alcoholic and that he smoked marijuana all the time; he had told her of two DWIs. Gustin contended that Trotter had taken advantage of her short friendship with a very-ill Jelinek.

Trotter agreed that Jelinek had received a Christmas card that year from Gustin but that he never had very positive things to say about her. Trotter noted that Jelinek had changed cell phones when he moved from Texas to Arkansas, so if Gustin used the Texas phone number, he never got those messages. Trotter said that she (Trotter) was like a daughter to Jelinek. Trotter stated that she did not have Gustin's contact information to give to the attorney when Jelinek died. Trotter explained who the individuals were who received specific monetary...