Smith v. Wharton
| Decision Date | 20 June 2002 |
| Docket Number | No. 01-1045.,01-1045. |
| Parties | Kathleen Wharton SMITH v. Joseph Burleson WHARTON, III, Executor of the Estate of Iola H. Wharton, Deceased; Joseph Burleson Wharton, III, Trustee of the Iola H. Wharton Living Trust dated July 29, 1997; Joseph Burleson Wharton, III; Joseph Clark Wood, A Minor; Marion Randolph Smith, Jr.; Thomas Christopher Smith and Kathleen Smith Shonert. |
| Court | Arkansas Supreme Court |
Huckaba Law Firm, P.A., by: Frank J. Huckaba, Mountain Home, for appellant/cross-appellee.
Carney Law Firm, P.A., by: Jodi G. Carney, Mountain Home, for appellee.
This is a will-contest case. Iola H. Wharton executed a will in 1980 by signing her name. In 1997, she undertook to execute another will, a declaration of trust, and various other estate planning documents. Because Iola was no longer able to write her name, she signed these instruments by mark. Following Iola's death on April 1, 1998, the 1997 will was admitted to probate and the decedent's son, Appellee Joseph B. Wharton, III, was appointed as executor. Appellant Kathleen Wharton Smith, the decedent's daughter, challenged the instruments executed by mark alleging, among other grounds not involved in this appeal, that the will, trust, and other instruments were not signed in the manner required by Arkansas law.1 The trial court, sitting as a chancellor and probate judge, found that the trust had been properly executed, but that the 1997 will had not been executed in accordance with the requirements of Arkansas law.
On appeal, Kathleen raises two points of error: First, that the trial court erred in concluding that the trust and trust documents were signed in compliance with Ark. Code Ann. § 16-55-102(A)(20) (1987); and second, that the trial court erred in allowing testimony by the attorney who not only drafted the instruments and represented Joseph in this litigation prior to the trial, but who also participated in the trial as an advocate. Joseph cross-appeals alleging that the trial court erred in ruling that the 1997 will was not executed in compliance with Ark.Code Ann. § 28-25-103 (1987) and in rejecting that will for probate. While we agree with Kathleen that the trial court erred in allowing an attorney to testify after the attorney had participated as an advocate during the trial, the error was not so prejudicial as to constitute reversible error under the facts of this case. Accordingly, as to the points raised on appeal and cross-appeal, we find no reversible error and affirm.
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). We also review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancery court unless it is clearly erroneous. State v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001). A finding of fact by the chancery court is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.
On September 19, 1980, Iola executed the first will by signing her name in the presence of two attesting witnesses. The second will was executed on July 29, 1997. Because she had broken her right arm and lost the use of it, Iola placed her mark on the 1997 will in the presence of three attesting witnesses. One of the witnesses had typed Iola's name on the will outside the presence of the other two witnesses.
Under the 1997 will, Joseph was named executor, and Iola's entire estate was left "to the Trustee named and identified in the IOLA H. WHARTON LIVING TRUST." A separate declaration of trust created the Iola H. Wharton Living Trust and named Joseph as the trustee and remainderman and Iola as the primary beneficiary. Iola placed all her personal property and, by quitclaim deed, 152.22 acres of real property in Columbia County into the trust. The trust specified how the trust assets were to be distributed upon Iola's death. The first $45,000 was to remain in trust for the benefit of Norvelle Z. Turner, her housekeeper, and Joseph Clark Wood. Other sums of money would be distributed as follows: Mary Lisa Wharton, her daughter, $10,000; Joseph, $10,000; Marion Randolph Smith, Jr., $2,500; and Thomas Christopher Smith, $5,000. Iola's personal and household effects would be divided among her three children: Kathleen, 20%; Joseph, 40%; Mary, 40%, with the remaining assets including lapsed gifts going to Joseph, as the remainderman.
The 1980 will left Iola's personal and household effects to Kathleen and Joseph per stirpes, and bequeathed $2,000 to Norvelle and $2,000 plus some gold and diamond personal effects to Mary. The rest of her real and personal property was to be divided evenly between Joseph and Kathleen. Joseph and Kathleen were named coexecutors and co-trustees. As previously mentioned, Iola signed the 1980 will in the presence of two attesting witnesses.
This matter was tried to the court over the course of three separate hearing dates. Because the two attorneys who drafted the contested documents were expected to testify, the parties stipulated that neither attorney would serve as counsel at trial, but that both attorneys could remain in the courtroom during the proceeding.
At the first hearing on August 18, 1999, William J. Wynne, an attorney engaged in the private practice of law in El Dorado since 1951, testified that he prepared the 1980 will, including a proof-of-will affidavit, at Iola's request while she lived in El Dorado. He verified the testamentary provisions of the will. After Iola moved to Mountain Home in 1994, he had no further connection with her as a client or friend. Next, Joseph testified about his duties and qualifications as trustee under the living trust. He also testified that he moved from Dallas to Mountain Home in the spring of 1997. At Iola's request, Joseph contacted Lane Strother, an attorney engaged in the private practice of law in Mountain Home, to speak with him about preparing the will and living trust. Iola instructed Joseph to write down how she wanted to divide up her estate. After his mother checked his notes for accuracy, Joseph transferred the list to computer tape and took it to Mr. Strother. Joseph further testified that Mr. Strother came out and spoke with Iola before he prepared the will and trust documents. At this point, Joseph went to the attorney's office, picked up the documents and delivered them to Iola for her review. Mr. Strother then returned to Iola's home on July 29, 1997, with two other witnesses. All three of them witnessed Iola make her mark on the will, trust, and related documents. Joseph was also present when his mother made her mark on the documents. During this hearing, Mr. Strother engaged in a colloquy with the trial court concerning Joseph's duty to account under the trust. He also advised the court that a copy of an appraisal report would be identified as "Respondent's Eight."
At the second hearing on March 15, 2000, during Joseph's testimony about tax returns filed on behalf of the estate, Mr. Strother again interjected that he had a copy of the 1040 tax return filed in 1998. The trial court then decided that Mr. Wynne would not be allowed to present legal argument regarding the documents executed in 1997. This led to a discussion about whether Mr. Strother should be allowed to testify as a witness following his earlier participation in the hearings. Next, Iola's nurses were called to testify about her competency and the fact that Joseph did not attempt to control his mother or restrict access to her. Joseph also repeated his earlier testimony regarding the events leading up to the execution of the 1997 will and trust. His testimony was followed by that of Mary T. Saine, an attesting witness. She recounted her observations about Iola's state of mind on July 29, 1997, and she confirmed that Mr. Strother explained the terms of the will and trust to Iola. Ms. Saine also testified that she witnessed Iola make her mark on both the will and the trust documents, and that when she typed the will and trust documents at Mr. Strother's office, she typed Iola's name on the documents. At this point, Kathleen noted Mr. Strother's earlier participation in the trial and objected to him being allowed to testify as a witness. The trial court did not rule on the objection, but instead adjourned the hearing in order to review the transcript of the record.
The dispute over Mr. Strother's role as a witness continued at the final hearing on April 12, 2000. Ultimately, the trial court ruled that Mr. Wynne was precluded from serving as an advocate; whereas, Mr. Strother was allowed to testify as a witness notwithstanding his participation as an advocate during the trial. In reaching this conclusion, the trial court reasoned that to disqualify or exclude "the person who drew the instruments, talked to the parties about their preparation [and] was present at their execution ... would, in fact, work a substantial hardship." Thus, Mr. Strother became the final witness and testified about the preparation and execution of the 1997 will and trust documents, as well as his observations concerning Iola's testamentary capacity and the absence of any undue influence by her son, Joseph.
We consider Kathleen's second argument first. She contends that the trial court erred in allowing Mr. Strother to testify after he actively participated in the trial. In response, Joseph asserts the trial court correctly found that the exclusion of his attorney's testimony would work a substantial hardship...
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