Medlock v. Mitchell, CA 05-891.

• Decision Date: 03 May 2006
• Docket Number: No. CA 05-891.,CA 05-891.
• Citation: 234 S.W.3d 901
• Parties: Jerald MEDLOCK, Jr., as Personal Representative of the Estate of Glenda Kay Mitchell v. Michelle MITCHELL, as Personal Representative of the Estate of George Richard Mitchell.
• Court: Arkansas Court of Appeals

234 S.W.3d 901

Jerald MEDLOCK, Jr., as Personal Representative of the Estate of Glenda Kay Mitchell v. Michelle MITCHELL, as Personal Representative of the Estate of George Richard Mitchell.

No. CA 05-891.

Court of Appeals of Arkansas.

May 3, 2006.

Walters, Hamby & Verkamp, by: Michael Hamby, Greenwood, AR, for appellant.

Christian & Byars, by: Joe D. Byars, Jr., and Eddie Christian, Jr., Fort Smith, AR, for appellee.

JOSEPHINE LINKER HART, Judge.

This is a contest over the validity of the will and amendments to the declaration of trust of George Richard Mitchell (Richard). Richard's widow, Glenda Kay Mitchell (Kay), died during the pendency of the action below, and her son, appellant Jerald Medlock, was appointed personal representative of her estate. Jerald brings this appeal from an order of the Sebastian County Circuit Court finding that the 2003 will and amendments to the trust proffered by Kay were the product of undue influence while the 1998 will proffered by appellee Michelle Mitchell was valid. Michelle is Richard's daughter and was appointed executrix of his estate. Jerald raises two points on appeal, arguing that the trial court erred in applying the presumption of undue influence and that, even if the trial court correctly applied the presumption of undue influence, Jerald showed by a clear preponderance of the evidence that there was no undue influence. We disagree and affirm.

Richard Mitchell executed a will on August 20, 1998, leaving his estate equally to two of his five children, Mark and Michelle.¹ Richard and Kay were married on December 28, 1998. The will appointed Michelle and Kay as co-executrixes. On the same day, Richard created a revocable living trust, with himself as trustee and the primary beneficiary of the trust. The trust was to terminate ten years after Richard's death. Upon termination of the trust, the corpus was to be distributed to Mark and Michelle. Michelle and Kay were named as successor co-trustees. The trust declaration also contained a "no contest" clause. On August 9, 2000, Richard amended the trust to name Kay as the sole first successor trustee. If Kay was unable or unwilling to serve, or if she resigned or was removed, Michelle was to be named successor trustee in her place.

In March 2003, Richard was diagnosed with terminal lung cancer. On June 30, 2003, Richard executed another will, leaving his entire estate to Kay. The will specifically stated that it made no provision for any of Richard's children and named Kay as executrix. Richard amended the declaration of trust on July 8, 2003, to provide that, upon termination of the trust, Michelle was to receive $10,000 and a condominium, and the remaining assets were to be transferred to Kay. During the ten years after Richard's death, the trust was to pay Kay $2,500 per month for her support and $200 per month for Michelle's support. The trust was also amended to specifically provide that Mark was not to benefit from the trust.

Richard died on August 10, 2003. On December 1, 2003, Michelle filed a petition seeking to probate the August 20, 1998, will. She also asserted that she was named coexecutrix and sought to be appointed personal representative of the estate. The petition alleged that the value of the estate was in excess of $3,500,000. On January 6, 2004, Kay responded to Michelle's petition, alleging that the 1998 will had been revoked by a will dated June 30, 2003. Kay also filed a petition on that day seeking to have the June 30, 2003 will admitted to probate and to be appointed sole personal representative of the estate. Kay's response and petition both alleged that the trust established in August 1998 had been modified on June 30, 2003, and contained a "no contest" provision. Michelle responded to Kay's assertions, alleging that the June 30, 2003, will was invalid because of Richard's incompetence at the time of its execution and further that it was the product of undue influence or fraud. She also objected to Kay's appointment as personal representative. On February 1, 2005, Michelle filed a supplemental petition for declaratory judgment that the July 2003 amendment to the declaration of trust was likewise void and invalid.

At trial, numerous witnesses testified for both sides. Jerald, in arguing for the validity of the 2003 will and amendments to the trust, relied on statements Richard made to Kay and to his attorneys that he was disappointed in Mark and Michelle, as well as his desire to see that Kay was provided for. The disappointment in Mark resulted from statements to Richard that Mark had wanted Richard removed from life support; that he had broken into Richard's home and office; that he had stolen $10,000 from Richard; and that he had made sexual advances towards Kay. Richard was also said to have been upset to discover that Mark was sharing information about Richard's finances with his mother. Richard's disappointment with Michelle stemmed from her problems with drugs and alcohol, a lesbian relationship she had, and her inability to hold a job or manage money.

Michelle argued that the 2003 will and trust amendments were the product of undue influence exercised by Kay, which, according to Michelle, was shown by the dramatic changes in Kay's relationship with Richard's children after Richard was diagnosed with cancer. These changes include Kay's statement that she wanted the will changed; her false accusations about Mark to Richard; her presence in the hospital room when Richard discussed the changes to the will and the trust declaration with his attorneys; her presence when both the will and the trust amendments were executed; and her holding Richard's general power of attorney.²

The trial court issued a letter opinion, finding that a confidential and fiduciary relationship existed between Richard and Kay, resulting in a rebuttable presumption of undue influence. The court noted that the burden of establishing that the new beneficiary did not take advantage of the confidential relationship rests with Jerald as the proponent of the 2003 will and trust amendments and must be established by a clear preponderance of the evidence. The court then concluded that Jerald did not rebut the presumption of undue influence as a result of the confidential and fiduciary relationship between Richard and Kay. Judgment was entered on May 13, 2005, and a timely notice of appeal followed.

Jerald raises two points on appeal: that the trial court erred in finding that a confidential relationship existed between Richard and Kay and that the relationship gave rise to a presumption of undue influence and, further, even if the trial court correctly found that a confidential relationship existed between Richard and Kay, the trial court erred in finding that Jerald did not rebut the presumption.

We review probate cases de novo, but we will not reverse the decision of the probate court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001). Due deference will be given to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996).

In his first point, Jerald argues that the trial court erred in finding a confidential relationship between Richard and Kay that can give rise to a presumption of undue influence. He argues that the factors cited by the trial court in...