                                    Cite as 2014 Ark. App. 80

                  ARKANSAS COURT OF APPEALS
                                         DIVISION II
                                           CV-13-75
                                         No.


                                                    Opinion Delivered   January 29, 2014

TIMOTHY ROGER SIMPSON, AS                           APPEAL FROM THE CRAIGHEAD
PERSONAL REPRESENTATIVE OF                          COUNTY CIRCUIT COURT,
THE ESTATE OF EDITH LAVERNE                         WESTERN DISTRICT
SIMPSON, DECEASED                                   [NO. PR-10-131]
                     APPELLANT
                                                    HONORABLE PAMELA
V.                                                  HONEYCUTT, JUDGE

BOBBY SIMPSON ET AL.
                                  APPELLEES         AFFIRMED



                            WAYMOND M. BROWN, Judge


       Appellant Timothy Roger Simpson, as the personal representative of the Estate of

Edith Laverne Simpson, deceased, appeals the September 5, 2012 order of the Craighead

Circuit Court setting aside Edith’s May 8, 2006 will.1 Appellant argues that the court erred

by setting the will aside based on a finding of undue influence by appellant. We find no error

and affirm.2

       The facts necessary to understand the instant case are as follows. Julius and Edith

Simpson were married for more than five decades and raised nine children during that time.

       1
       The order lists the date of the will as May 8, 2010, but it is clear that the will set aside
was created in 2006.
       2
       This is the second time this case has been before us. We originally ordered rebriefing
due to deficiencies in appellant’s abstract and brief. See Simpson v. Simpson, 2013 Ark. App.
581.
                                   Cite as 2014 Ark. App. 80

On September 19, 2002, Mr. and Mrs. Simpson executed mirror-image wills. The assets of

the estate were divided equally among seven children3 and one child was specifically

excluded,4 in the event that both spouses were deceased. Tammy Earnhart was appointed the

personal representative of both wills. Julius died on July 28, 2005. Shortly after Julius’s death,

on August 3, 2005, Edith executed a durable power of attorney granting Timothy and

Tammy joint power. On April 21, 2006, Edith called her attorney, Charles M. “Skip”

Mooney, Sr., and advised that she was destroying the original will. On May 8, 2006, Edith

executed a will revoking the 2002 will. In the May 8, 2006 will, Edith specifically excluded

appellees. She left her entire estate, including over seven hundred acres of farmland, to

appellant. She also granted appellant the sole power of attorney. Edith died on April 15,

2010, at the age of eighty-four.

       On April 23, 2010, appellant filed a petition to probate the May 8, 2006 will, and to

be appointed personal representative according to the terms of the will. He accepted the

appointment on the same day. An order admitting the will to probate was entered on April

26, 2010, and a letter of administration was filed on that date. Appellees filed a notice

objecting to the probate of the will on June 28, 2010. They contended that the 2006 will was

the result of fraud and/or undue influence based on threats made by appellant and the fact that


       3
        Bobby Charles Simpson, Phyllis Ann Cox, Stephen Earl Simpson, Benjamin (Bennie)
Keith Simpson, Dennis Mark Simpson, Tammy Simpson Goff (now Earnhart), and Timothy
Roger Simpson. With the exception of Timothy, these children are the appellees in this
action.
       4
        Julius Ralph Simpson, Jr. There is no evidence explaining why only eight children are
specifically listed in the will although the Simpsons had nine children.

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appellant and Edith had a confidential relationship. They also sought to have the 2002 will

probated and a personal representative appointed. Appellant denied the material allegations

of appellees’ objection in his response filed July 12, 2010. Amendments to the objection were

filed on September 1, 2011, and October 24, 2011.

       A hearing took place on November 2, 2011. Appellant testified that he was the

youngest child of the family; that he never picked cotton on the family farm; that his parents

supported him until their deaths; that he had Graves’ disease; and that at one time he hated

Tammy. He stated that Tammy visited Edith on major holidays, but that she never came

back after 2005. He said that Phyllis visited Edith after 2005. Appellant denied breaking

Edith’s windshield because he was upset that he and Tammy were jointly granted power of

attorney. He also denied making statements to Edith threatening Tammy’s life. Appellant

stated that Edith was angry with Tammy, Dennis, and Bennie because they tried to have him

locked up. Appellant testified that he fired a shotgun inside the house, striking a television,

during a suicide attempt. He also stated that he destroyed the refrigerator with his bare hands,

and buried a freezer in the yard. However, he denied shooting out a window in the house.

According to appellant, this all took place in January 2006, and Edith was home at the time.

Appellant admitted that on February 3, 2006, he took approximately fifty pills and then

attempted to drive to Walnut Ridge with Edith in the vehicle. He wrecked the car and was

subsequently arrested for driving while intoxicated (DWI). Following his arrest, appellant was

placed in Mid-South Health Systems’ Crisis Unit for substance abuse and mental health

diagnosis/treatment.


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       Appellant testified that Tammy introduced him to marijuana when he was only nine

years old. He denied making a statement to his counselor that he was introduced to drugs at

age ten by one of his older brothers. He stated that when he told the counselor at Mid-South

that marijuana and alcohol were his drugs of choice and that he spent his days drinking until

he passed out, he was speaking about the past. Appellant said that he told his counselor that

everyone was scared of him on July 6, 2006. He admitted that he told his counselor on July

27, 2006, that he had awakened with blood on his face and thought that he had killed

someone. He also stated that he told his counselor on August 11, 2006, that his mother had

recently taken everyone out of her will except him. He, however, denied telling his

counselor that he was glad that he had “screwed” appellees out of everything. He contended

that he did not do anything to cause Edith to change her will in his favor. Appellant testified

that he did not learn about changes to Edith’s will until the summer. He opined that

appellees did not love Edith and that they hated their father. Appellant admitted that he told

Edith that Tammy physically abused him when he was younger, including trying to smother

him, but he insisted that he made this disclosure over twenty years ago. According to

appellant, Edith did not trust Tammy after 2006.

       On cross-examination, appellant stated that he did not remember his parents being

angry with any of his siblings, with the exception of Bobby. He testified that none of his

siblings came and helped Edith around the house after their father died. Appellant stated that

he never discussed business with his mother; however, he said that she did ask his input during

the last couple years of her life. He testified that despite Edith’s physical problems, she had


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a pretty good memory. He denied ever seeing her delusional. Appellant stated the Edith was

not afraid of him and that he never hurt her. He denied ever threatening the appellees to

their face. He testified that he never locked the appellees out of Edith’s house.

       On redirect, appellant admitted that he worried Edith, but he denied ever physically

hurting her or putting her in danger. He stated that he had a problem with profanity and

would use it around Edith, but that he did not direct it toward her.

       Kay Simpson, Bennie’s5 wife, testified that Bennie was very close to his parents.

According to Kay, they visited Edith’s farm about three times a week. She also stated that

Bennie performed chores for his parents, including putting in a new door and working on the

hot-water heater. She said that Bennie added a garage and a bathroom to the house in 2005.

She testified that they visited the Simpsons on every major holiday. However, Kay said that

all changed around Christmas 2005. She said that, around Christmas 2005 she removed a

blanket from a television that had been shot. According to Kay, a window in the den had also

been shot before. Kay testified that Edith called her on March 6, 2006,6 and told her that they

were not to come back until appellant settled down. Kay stated that they went over to

Edith’s that day and that Edith was acting nervous and trying to make sure appellant was not

coming around. She said that she continued to call Edith and ask if they could come visit, to

which Edith would reply that she did not know. Kay stated that she went into Edith’s house

after appellant was arrested and that the house was “a mess.” She testified that, while over

       5
       There are places in the record where he is referred to as “Benny” and “Bennie.” For
purposes of this opinion, he will be referred to as “Bennie.”
       6
           This is the same date appellant pleaded no contest to DWI.

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there, Edith told Bennie that her estate “will be divided equally between all kids.” Kay stated

that she did not know how the conversation came up. Kay also stated that she had heard

Edith say in the past that she would not leave everything to one child. She said that when

they left Edith’s house, Bennie removed the firearms. She stated that Edith came to their

house in August 2006 to retrieve the guns. She said that Bennie turned the guns over to

Edith when she stated that she did not know what appellant would do. Kay stated that Edith

returned in September 2006 to retrieve a gun that had not been returned in August. She said

that they went to take some turnips to Edith, but Edith met them outside in the cold. Kay

testified that when she would call Edith after March 2006, Edith would be “mumbly.”

       On cross-examination, Kay stated that she had not personally heard appellant threaten

her or Bennie. She also said that appellant never personally told her or Bennie that they could

not come to Edith’s house. She testified that she did not really have any direct contact with

Edith except for the two times Edith came to retrieve the guns after March 2006. She said

that all of the appellees gathered at her home after the will was read to discuss it.

       Bennie testified that he grew up working on his parents’ farm. He stated that after he

moved, he visited them about three times a week. He said that he worked on his parents’

doors, water heater, and wiring. Bennie stated that he had a good relationship with his

parents and that Tammy did, too. He said that he really did not have a relationship with

appellant because every time they would go over there, appellant would either go outside or

to his room. Bennie said that Edith told him that appellant had destroyed the icebox, deep

freezer, and microwave. He stated that Edith admitted that appellant had shot out a window


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in the house. According to Bennie, Edith also told him that appellant knocked out her car

window with his fist after she initially told everyone that a rock had damaged the vehicle.

Bennie stated that Edith never told him that appellant had threatened anyone. He said that

he went to Edith’s house a couple of times after the March 2006 telephone call. He stated

that he initially went the day of the call and that Edith was “fidgeting and looking back

toward the living room . . . afraid Tim was going to come out.” He said that they stayed a

few minutes and then left. He testified that he did not know why he did not do anything to

ensure Edith’s safety.

       On cross-examination, Bennie stated that he was not afraid of appellant and that

appellant never threatened him personally. He also stated that appellant never told him not

to come back over to the house.

       Phyllis testified that she had a fair relationship with her parents. She stated that she also

worked on the farm while growing up. She said that she made most holidays before 2005.

Phyllis stated that she visited Edith on and off after her father died until it got to the point that

she could not tolerate appellant’s language around Edith. She said that appellant would use

profanity, talk about sex, and call Edith ugly. She stated that she would ask appellant not to

talk that way in front of Edith and that he would put his hand on Phyllis’s forehead.

According to Phyllis, she quit going around until Edith got very sick.

       On cross-examination, Phyllis stated that Edith would tell her not to worry about what

appellant was saying because he would calm down. She said appellant continued to live at

home with Edith until Edith’s death. She testified that appellant and Edith spent two


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Christmas Eves at her house. She agreed that prior to getting together to discuss the will, she

and her siblings had not all been together since Christmas 2005. Phyllis stated that she was

not afraid of appellant. She also stated that appellant never personally threatened her or told

her directly or indirectly not to come to Edith’s house.

       Upon questioning by the court, Phyllis stated that at some point she became concerned

about Edith’s safety. She said that right after her father died, when she visited, Edith showed

her bruises, cried, and said that she wished she was dead. She stated that appellant was outside

or in his room when Edith showed the bruises. She admitted that she did not do anything

to ensure Edith’s safety.

       Wendy McFall testified that she worked at Mid-South for five years beginning in May

2006. She stated that appellant was assigned to her for therapy purposes. However, she also

stated that she did not remember any of her conversations with appellant. During her

testimony, counseling records were admitted into evidence. Notes from February 14, 2006,

stated that appellant threatened Edith before he could be discharged from the hospital and that

he also threatened to destroy the new television Edith purchased for him. On February 15,

2006, appellant said that he did not recall threatening his family. He stated that he did not

remember threatening Edith in the notes of February 16, 2006. Appellant also stated that he

was angry with Tammy because she introduced him to drugs at a young age. On February

17, 2006, appellant admitted that he broke a television and a window and that he punched

out a windshield. On July 6, 2006, appellant stated that everyone was afraid of him and that

he could not “find a fight” anymore. He also stated that he should have been in the military


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so that he could “kill and fight people.” On August 3, 2006, appellant admitted sneaking

drinks and drugs within the past two weeks. According to the record, he seemed remorseful

because the drugs and alcohol made him “verbally and physically aggressive” and mades him

do and say things he would not ordinarily do. Between August 10–11, 2006, appellant stated

that Edith had recently taken everyone out of her will except him. The record states that

appellant became “verbally aggressive in the way he told about his family and how he was

glad he ‘screwed’ them out of everything.” On August 16, 2006, after stating that he lies to

“you people” all the time, appellant quit treatment.

       Victoria Harris testified that she was Kay and Bennie’s daughter. She stated that she

had a close relationship with Edith and that they visited her frequently. She said that she

never went back to Edith’s house after she learned that they were not welcome there.

       Dennis testified that he visited his parents yearly during the holidays. He said that the

last time he was in Edith’s house was Christmas 2005. He testified that he never saw Edith’s

house torn up during the times he visited. Dennis stated that he had a good relationship with

his parents before his father died. He also said that he was on good terms with Edith through

February 2006.

       Larry Earnhart, Tammy’s husband, testified that he married Tammy in 2002.

According to Larry, at that time Tammy and Edith had what seemed to be a very close

relationship. He said that Tammy and Edith talked on the phone almost daily. Larry stated

that he and Tammy went to Edith’s house on February 3, 2006, after appellant was arrested.

He said that Edith was nervous and wanted to leave the house, so they took her home with


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them for a couple of nights. Larry testified that while he was at Edith’s, he noticed that the

television had been shot, that appellees’ pictures were missing from the wall, and that there

was blood on the carpet. He stated that Edith told him that the blood was from appellant

tearing up the refrigerator with his hands. He said that prior to February 2006, he had seen

two bullet holes in the den window. Larry stated that he and Tammy visited Edith on

Sundays and that Bennie, Kay, and Dennis and his family would also be there. He said that

they had a “normal family situation” until the father died. He stated that Tammy was usually

the one who took her parents to doctor appointments. He testified that they did not go back

to Edith’s house after March 2006.

       On cross-examination, Larry stated that he thought appellant was potentially

dangerous. However, he said that appellant had never personally threatened him, assaulted

him, cursed him, or told him that he was not welcome at Edith’s house. Larry testified that

Edith “obviously knew that [appellant] had some mental issues.”

       Tammy testified that she moved back to Arkansas in 1999, after leaving home in 1987.

She said that she lived in California and in Kansas City before returning to Arkansas. She

stated that she and Edith wrote to each other because making long-distance phone calls were

expensive. She testified that even when she lived out of state, she came home three or four

times a year for different holidays. She said that in 1997 or 1998, appellant and her parents

visited her in Kansas City. Tammy stated that despite being out of state in 1996, she planned

and implemented a fiftieth wedding anniversary party for her parents. She testified that she

did not work for a year when she came back but that she was still getting paid from previous


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self-employment. She said that she dedicated this year to spending time with her parents.

Tammy said that her contact with appellant during that time was very limited. She stated that

between 1999–2006 she was at her parents’ house at least once a week. She testified that her

parents asked her to do their FY1999 income tax return and that she continued to do the

returns through FY2004. She opined that her parents trusted her. Tammy said that her

parents told her in 2002 that they had made a will but that they did not tell her the contents

of that will. She stated that she learned of the will when her father asked her to be the

executor of the will. Tammy testified that before she left home in 1987, she babysat appellant

because her parents still had a cattle farm. She said that she never tried to kill appellant or

smother him with a pillow. She also denied introducing appellant to marijuana or ever

smoking the drug with him. Tammy stated that she received a call from Edith around 2008

stating that appellant had told Edith that Tammy had made him smoke marijuana and had

broken his arm. She said that Edith also said other things but she could not remember

everything. She testified that she and Edith still got along well in 2006. She stated that Edith

confided in her that she could no longer live at home and that she wanted appellant to get

some help. She said that Edith told her about appellant’s threats against her, Bennie, and

Dennis in early March. Tammy testified that while appellant was in the hospital, she and

Dennis went to the prosecutor to try to do something about appellant. She said that they

were informed that Edith would have to sign a petition to get appellant committed.

According to Tammy, Edith agreed to sign the petition but later declined. Tammy stated that

appellant never confronted her about the situation but that he did confront Edith.


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       Tammy testified that after Christmas 2005, Edith started making excuses for them not

to come over. She said that when she went to Edith’s house after appellant was arrested, she

noticed glass against the edge of the carpet from where appellant had busted all of the

appellees’ senior class pictures with his fist. She also noticed that there was blood on the

carpet and that the television and deep freezer were missing. She stated that Edith told her

appellant shot the deep freezer, dragged it out of the house, and buried it. Tammy testified

that she also saw bullet holes in the window and in Edith’s television. She said that while

appellant was in the hospital, she overheard appellant cursing Edith or at Edith when they left

the room. She stated that appellant would shut up as soon as someone walked in. Tammy

said that Edith seemed happier when appellant was at Mid-South and that she was not nearly

as nervous. Tammy testified that she did not know anything Bennie, Dennis, or she did to

make Edith take them out of the will. She said that in less than a week following her father’s

death, Edith jointly granted power of attorney to appellant and Tammy. In May 2006, Edith

revoked Tammy’s power and granted appellant sole power of attorney. Both instruments

were admitted into evidence over appellant’s objections. The court stated that they were not

being admitted to show undue influence, but to show that Edith changed her mind during

this period of time.

       Tammy stated that when she met Edith and appellant at Mooney’s office in August

2005, appellant acted upset, his face was red, and he was “kind of agitated.” She said that a

couple of days later she saw damage to Edith’s driver’s side window. She stated that Edith

told her that a rock had damaged the window but Tammy stated that she could tell that it had


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been knocked out from the inside. Tammy said that in February 2006 Edith told her that

appellant had punched the window after they left Mooney’s office. She stated that, until

March 2006, she never knew that appellant did not like her. She opined that appellant

wanted to get the children closest to their parents “out of the picture.” Tammy stated that

she saw Edith four times after the March 2006 telephone call. She said that they still talked

on the telephone and that Edith told her “not yet” when she asked if she could come to the

house. She testified that in September 2008, Edith called her for the “original paperwork on

all the land documents” because Edith said appellant wanted them back. Tammy testified that

the fact that she could no longer go to Edith’s house was evidence enough that appellant was

controlling Edith. She said that if she called Edith when appellant was around, Edith would

whisper. However, she stated that if Edith called and appellant was not around, Edith could

easily be heard. She testified that her phone contacts with Edith lessened after March 2006.

Tammy said that Edith was not mentally incompetent. She denied telling Edith that she

wanted appellant dead. She stated that on a scale from one to ten, her relationship with Edith

was a ten. Tammy testified that she learned in March 2006 that she would not be doing

Edith’s tax returns. She said that she invited Edith to her house each Christmas but that Edith

declined to come. She also stated that Edith told her that appellant said that she stole money

from her father’s wallet. According to Tammy, ten years ago she overheard her parents state

that their estate was going to be divided equally.

       On cross-examination, Tammy stated that appellant was the only one left at home

when she left. She said that she did not come around much until she moved back in 1999.


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She stated that Edith had some physical problems but those problems did not prevent her

“from carrying on her life.” She testified that appellant returned home once he was

discharged from Mid-South and the hospital. She stated that appellant was “the baby” and

“had everything given to him.” She admitted that appellant never physically assaulted her,

threatened her, cursed her, or had an altercation with her. She testified that no one got

together to celebrate Edith’s eightieth birthday. She stated that 2010 was the first time all of

the appellees were together since Christmas 2005. She said that Edith was intimidated by

appellant but that Edith never tried to leave home or have someone remove appellant from

the house. She stated that she never had a conversation with appellant about being allowed

to come back to the house.

       On redirect, Tammy stated that she was afraid of appellant after she saw the state of

Edith’s house in February 2006. She said that Edith was not afraid for her own safety, but for

the safety of everyone else. She testified that Edith could not talk on the phone when

appellant was around.

       Richard Cox, Phyllis’s husband, testified that he witnessed appellant making sexual,

inappropriate statements to Edith. He said that Edith usually did not respond to appellant.

He stated that every time they were around, appellant’s inappropriate language would start

“sooner or later.” Richard said that he usually visited Edith’s house once or twice a year with

Phyllis. He stated that he saw bruises on Edith, but Edith would always tell them that she fell.

       Mooney testified that he was familiar with the elder Simpsons and that they were a

very family-oriented couple. According to Mooney, he first met them in 1975 when they


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wished to have all of their real estate placed in both of their names. He stated that as they

grew older, most of their contact with him was over the phone. He said that when they did

come to his office, they were usually with Tammy. He testified that the last time he saw

Edith was in 2006 when she created the will at issue. Mooney stated that Edith was

concerned in her advanced age about being placed in a nursing home. She told Mooney that

appellant was taking care of her and that in return, she wanted to make sure that he was

properly taken care of. He said that Edith finally decided to remove everyone from her will

except appellant. Mooney testified that he never had a conversation with appellant prior to

the execution of the May 2006 will. He said that Edith called him about changing her will

and made arrangements to come to his office on a Monday. He stated that Edith came in as

scheduled but that he did not specifically remember being in the room when the will was

executed. He said that he was in a “very difficult automobile accident” the following

Saturday, but that he had no memory of the accident. According to Mooney, he could

remember things that happened before the accident, but he said that he believed his memory

was impaired to some extent about events that occurred before that time. Mooney opined

that Edith had the ability to execute the will in 2006.

       On cross-examination, Mooney stated that Edith began calling him in April 2006

about making changes to her will. He said that he did not know that appellant was a drug

addict at the time Edith was discussing changes to the will. He stated that he also had no

knowledge about appellant shooting things in the house, being in Mid-South, or making

threats. He said that had these facts been known, he would have spent more time with Edith.


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Mooney stated that he was unsure whether appellant was present when Edith called him

about changing her will.

       Robert McNeal testified that he began preparing the Simpsons’ taxes in 1988. He

stated that at some point, Julius got angry about something and they stopped using his

services. He said that Edith returned to him in 2006 and that he continued to prepare her

taxes through 2010. He stated that he discussed tax matters with Edith. McNeal testified that

Edith was not irrational but that she was “very concerned, and borderline worried, about her

and [appellant’s] health.” He stated that Edith never discussed her will with him.

       Bobby Davis testified that he was a tenant on the Simpsons’ farm. He stated that

appellant was shy and would usually leave the room when he visited the house. He said that

he did not notice any fear or apprehension when he visited the farm. He testified that Edith

called him to take her to pick up appellant when appellant got discharged. He said that Edith

told him appellant was mad at appellees for trying to get him committed. He stated that Edith

also told him that appellant gotten into Julius’s medicine and ended up shooting the television.

Davis stated that Edith had health problems but that he never saw her delusional or irrational.

He said that Julius explained to him the circumstances that led to one of the Simpsons’ sons

being cut out of the 2002 will. He stated that Edith’s house was always locked and the blinds

were always down. He said that Edith told him that appellant did not want any of the

appellees over there. Davis stated that after Edith’s death, appellant still did not want appellees

to come see him because “he had a grudge against them.”




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       On cross-examination, Davis stated that you could tell that Tammy had a good

relationship with her parents. He said that after the February 3, 2006 incident, Edith was not

afraid for herself but that she may have been afraid for her other children. He said that the

shade-pulling and door-locking got worse after Julius died. Davis stated that Edith told him

that appellant had shot the refrigerator, stove, and television. He said that appellant told him

in the past year that Edith left everything to appellant.

       On redirect, Davis stated that he never noticed any bruising on Edith. He also said

that Edith never told him that she wanted to leave the house she shared with appellant.

According to Davis, Edith told him that appellees wanted appellant admitted to a mental

facility for evaluation, but Edith did not want to do that.

       The deposition testimony of Dr. Brannon Treece was admitted into evidence. On

direct, Dr. Treece stated that he first began treating Edith in November 2007. He stated that

she was always “well kept.” He said that appellant brought her to appointments and also

called about her prescriptions. According to Dr. Treece, Edith was “good, mentally,” and she

was rational. He opined that appellant had a good relationship with Edith. He stated that he

did not think that Edith was concerned for her safety, and she did not discuss any fears with

him. He said that Edith never discussed her will with him. Dr. Treece stated that appellant

informed him that appellant was taking care of Edith; however, he said that appellant never

discussed Edith’s will with him before Edith died.

       On cross-examination, Dr. Treece stated that he began treating appellant in the fall of

2007. He said that he was unaware that appellant had been admitted to the hospital for an


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overdose in February 2006. He testified that appellant did discuss Edith’s will following her

death. He stated that he recommended anger counseling for appellant in December 2010

because appellant’s “tone of speech just seemed to be more pressured” when he discussed the

dispute over the will. Dr. Treece said that appellant never sought anger counseling to his

knowledge. He stated that Edith had a number of illnesses, including diabetes, osteoporosis,

high blood pressure, renal cancer, high cholesterol, anemia, and chronic back pain. He also

stated that she took a number of medications throughout the years for these conditions.

According to Dr. Treece, medical records for Edith revealed that she presented to her doctor

on February 7, 2006, not feeling well and under a lot of stress because one of her sons

“developed some acute mental status changes and was admitted to the hospital.” He testified

that a February 10, 2006 MRI revealed age-related changes but that the MRI did not reveal

one’s mental capacity. Dr. Treece testified that Edith suffered a number of falls throughout

the years as was documented by her medical records. He stated that appellant was in the

treatment room with Edith ninety-percent of the time.

       On redirect, Dr. Treece stated that he had not observed any behavioral problems with

appellant. He said that appellant never did anything out of place in his office or in his

presence. He admitted to hearing appellant curse but stated that it was not directed toward

him. He opined that Edith’s physical problems and medications did not affect her ability to

make rational decisions.

       On recross, Dr. Treece acknowledged that the changes identified in Edith’s February

2006 MRI “could weaken your reserve.” He testified that appellant used curse words to


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describe the will-contest situation. However, he stated that appellant’s language was not

directed at “anyone or anything like that.” He described it as frustration.

       At the conclusion of the hearing, the court took the matter under advisement. It

issued a letter opinion on August 8, 2012, setting the May 2006 will aside due to undue

influence. An order was filed on September 5, 2012. The court found that Edith had the

mental capacity to execute the May 2006 will. In its analysis of the issue of undue influence,

the court stated in pertinent part:

       There is no direct evidence that Tim exerted “control over the mind” of Edith
       Simpson causing her to draft a new Will leaving everything to him however,

       In Hyett [sic] v Wroten,[7] the Court stated,

                 “Undue influence is generally difficult of direct proof.
                 It is generally exercised in secret, not openly, and like a
                 snake crawling upon a rock it leaves no track behind it,
                 but its sinister and insidious effect must be determined
                 from the facts and circumstances surrounding the
                 testator, his physical and mental condition as shown by
                 the evidence and the opportunity, of the beneficiary of
                 the influenced bequest to mold the mind of the testator
                 to suit his or her purposes.” (Emphasis added.)

       Hyett [sic] v Wroten, is applicable to the facts in this case. Though there is no direct
       proof that Tim unduly influenced Edith Smith [sic] to draft the Will, there is an
       overwhelming amount of circumstantial evidence that Tim exerted undue influence.
       He frightened and bullied and manipulated her to the extent that she refused to let her
       children visit or to visit them, she endured tirades of anger and gun fire and then tried
       to make excuses for Tim, she changed accountants at Tim’s request. Though she
       agreed for Bennie to take all guns out of the house after Tim shot the household items
       and window, and threatened to shoot himself at the therapist’s office, she went back
       in August and retrieved the guns at Tim’s insistence, stating, she was afraid of what he
       would do if she didn’t get the guns. According to the Therapist’s notes, Tim was still


       7
           Hyatt v. Wroten, 184 Ark. 847, 43 S.W.3d 726 (1931).

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using in April and May the same month the new Will was signed. On several visits
his eyes were bloodshot. On the August 3rd visit he admitted sneaking drugs/alcohol
during the prior two weeks and he was laughing about screwing his brothers and sisters
out of the Will.

After December, 2005, Ms. Simpson, based her actions on fear of what Tim would do
or had said. Even Edith Simpson’s new doctor stated that at her age, with her medical
problems her “resolve” was likely weakened.

....

February 7, 2006. Three months before her Will change her doctor noted, (emphasis
added) patient weak, falling, not eating well, patient reports a lot of stress in her house
due to her son developing acute mental status changes and being admitted to hospital.
Put on Lexapro for depression. Ms. Simpson’s medical problems continued to worsen
throughout her life, though their relevance is that prior to May, 2006 when she
executed a new Will.

Ms. Simpson had enjoyed having her family over for the Holidays throughout the
years. It was Dennis, Bennie and Tammy and their children who were closet [sic] to
Ms. Simpson and who did the most for her until Tim’s tirades with a gun in
December, 2005 and January and February, 2006 and his threats to harm the other
siblings. Prior to his father’s death Tim was fully supported by his parents and in his
30’s living at home, yet he allowed the other children to care for his aging parents.
Tammy testified that even when she did not live in Arkansas she spoke with Ms.
Simpson on the telephone almost daily. Even though Tim lived here with his parents
and Tammy was living out of state, it was Tammy who planned and threw a 50th
wedding anniversary for her parents including invitations, refreshments etc....

She then moved back to Arkansas to take care of her parents, which she did, including
taking them to doctor visits, staying with them after surgery, cooking, working in their
garden, working in her mother’s flower beds. In contrast, during this time period,
Tim appears to have helped his parents very little. . . .

....

This Court believes that Tim exercised a “positive dictation and control” over the
mind of Edith Simpson. For example, Ms. Simpson told Kay and Bennie not to come
over until Tim calmed down, it is evident that her actions were based on Tim’s
request, not her desires.



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When Ms. Simpson told Tammy and her family not to come over - she stated it was
because Tim threatened to kill Tammy. Therefore, this action was based on fear
induced by Tim and Tim’s request, not her will.

Tammy and others testified that after January, 2006, Ms. Simpson whispered on the
telephone to them, so Tim would not know she was talking to them.

Ms. Simpson stated she stopped using Tammy to prepare her taxes because Tim asked
her to. She changed accountants even though no errors were found in the years
Tammy prepared them. She changed accountants because Tim told her to.

Ms. Simpson also changed doctors after her other children were excluded from her
home and she and Tim started to see the same doctor around 2007.

In this instance, Tim Simpson isolated Edith Simpson the same way a domestic abuser
isolates his wife from friends and family; the same way one who enslaves or brain
washes another human being does; and the same way a cult separates it’s [sic] members
from family and friends. Edith was approximately (79) years of age when Mr. Simpson
died. She was a diabetic, suffered from renal cancer, had a kidney removed, suffered
from multiple fractures in the spine and severe osteoporosis. She later suffered anemic
episodes requiring blood transfusions. She was taking numerous medications including
pain killers. She was frightened by Tim’s drug use/abuse and his tirades of shooting
up the house and threatening family as evidenced when she called her nephew and was
afraid to stay home for two nights after the shooting and [DWI] incidents. This was
also evidenced by Edith’s statements to both the mental health professionals and to her
other children regarding Tim’s threats. Tim made a believer out of Edith Simpson by
exhibiting his anger, and violence, and by telling her lies regarding the others,
particularly Tammy. Tim told Edith Simpson and a therapist that Tammy introduced
him to using drugs, that she broke his arm, that she tried to smother him, and
physically abused him. Tammy vehemently denied all these allegations. There is no
evidence any of this occurred other than Tim’s statement. The Court found Tammy’s
testimony to be more credible than his. “Cases involving undue influence will
frequently depend on the credibility of witnesses,” Higgs v. Estate of Higgs[8] and Pyle
v. Sayers.9

In this case Tim is not credible. He even told his therapist that, he lied to them all the
time. . . . Furthermore, Tim contradicted himself throughout his therapy sessions. For
example, he claimed in one session he never threatened his siblings or his mother, then

8
    48 Ark. App. 148, 892 S.W.2d 284 (1995).
9
    344 Ark. 354, 39 S.W.3d 774 (2001).

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       later he states that if he did threaten his mother he doesn’t remember it. He stated that
       Tammy introduced him to drugs at age (10), then later he stated his brother was the
       one who introduced him to drugs, he later said he was (9) years old when he started
       using. Tim was so untruthful that he attempted to water his drug test.

       Tim Simpson slowly gained control over Edith Simpson by scaring her with his
       tirades, by telling her lies about his siblings, by isolating her from her family, by
       stealing her medications, eventually getting her to stop using Tammy for accounting
       work. She was so afraid of Tim that she didn’t want him to know she was talking to
       his siblings on the telephone.

       However, the single most telling piece of evidence in this trial was Tim Simpson’s
       statement to his Therapist that his mother had changed her Will, leaving everything
       to him. The therapist’s notes state, “Client was becoming verbally aggressive in the
       way he told about his family and how he was glad he screwed them out of
       everything.”

       Webster’s New World Dictionary, 3rd Edition defines “screw” as to practice extortion
       on; to cheat, to swindle, to treat unfairly. Tim would not have made such a statement
       if the Will change was Edith’s idea and free will. He basically admitted what he had
       done. Edith was elderly, on medications, her resolve was weakened, and after his
       arrest, she stated she didn’t care if she lived anymore.

       Though there is no direct evidence that Tim Simpson procured the Will, there is
       plenty of evidence that he slowly and methodically exerted control and undue
       influence over her causing her to exclude her other children, including the children
       who had helped her to most and whom she had been closest to prior to Tim’s
       supposedly drug induced fits and ultimate control. Just as a murder case does not
       require direct proof, neither does undue influence.

As for the burden of proof in this case, the court stated:

       In this particular case, as relates to the burden of proof, it does not matter whether Tim
       procured the Will or whether he was in a confidential relationship or whether the
       burden shifted, as this Court finds that the opponents of the Will have met their
       burden of proving that Tim Simpson exercised undue influence over the mind of
       Edith Simpson causing her to change her Will and leave him (700) acres of prime
       farmland and approximately $900,000.00 to the exclusion of those children she was
       closest to.

       This evidence of undue influence was not met, overcome or rebutted by the
       proponents of the Will. The only evidence they produced to that effect, was Tim’s

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       testimony which this Court did not find to be credible, and Skip Mooney’s testimony
       regarding the telephone conversation with Edith, regarding why she wanted to change
       the Will.

The court concluded that appellant’s admission that he screwed appellees out of everything;

coupled with appellant’s drug use, lies and violent bursts directed toward or in front of his

elderly and ill mother; along with Edith’s statements regarding her fear of what appellant

might do if she did not comply with his directives and her need for anti-depressants two to

three months before the will was changed “painted a picture of an elderly, sick frightened

woman, who complied with what ever [appellant] wanted in order to avoid further tension

and outbursts and possible harm to her other children or [appellant] hurting himself.”

The court set aside the May 8, 2006 will and denied probate because it found that the will was

the product of undue influence exercised by appellant. Appellant filed a post-trial motion to

vacate. The court did not act on the motion. Appellant filed his notice of appeal on October

29, 2012. This appeal followed.

       Appellant argues that the trial court erred by setting aside the May 8, 2006 will because

there was no direct or presumptive undue influence. More specifically, appellant argues (1)

that he had no direct influence over the will’s production or execution, and (2) that he neither

procured the will nor was he in a confidential relationship with his mother.

       We review probate proceedings de novo; however, we will not reverse the circuit

court’s findings unless they are clearly erroneous or clearly against the preponderance of the

evidence, giving due deference to the superior position of the trial judge to determine the




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credibility of the witnesses and the weight to be accorded their testimony.10 A finding is

clearly erroneous when, although there is evidence to support it, the appellate court is left on

the entire evidence with a firm conviction that a mistake has been committed.11

       It has long been the law in Arkansas that a party challenging the validity of a will must

typically prove by a preponderance of the evidence that the testator lacked the requisite

mental capacity or that the testator was the victim of undue influence when the will was

executed.12 The questions of undue influence and mental capacity are so closely interwoven

that they can be considered together.13 The influence that the law condemns is not the

legitimate influence that springs from natural affection, but the malign influence that results

from fear, coercion, or any other cause that deprives the individual of her free agency.14

Undue influence may be inferred from the facts and circumstances of a case.15 Cases involving

undue influence will frequently depend on witness credibility.16 If the maker of a deed, will,

or other instrument has sufficient mental capacity to retain in her memory, without

prompting, the extent and condition of her property, and to comprehend how she is disposing



       10
            Pyle, supra.
       11
            Wilson v. Lindvall, 2013 Ark. App. 364, ___ S.W.3d ___.
       12
            Id.
       13
            Hooten v. Jensen, 94 Ark. App. 130, 227 S.W.3d 431 (2006).
       14
            Id.
       15
            Id.
       16
            Pyle, supra.

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of it, and to whom, and upon what consideration, then she possesses sufficient mental capacity

to execute such instrument.17 Where the mind of the testatrix is strong and alert, the facts

constituting undue influence must be stronger than where the mind of the testatrix is impaired

either by some inherent defect or by the consequences of disease or advancing age.18 The

influence of children over parents is legitimate so long as they do not extend a positive

dictation and control over the mind of the testatrix.19

       There are certain circumstances that will cause the burden of proving undue influence

to shift to the proponents of a will. One example of this is where a beneficiary procures the

will. Procurement of a will requires actual drafting of the will for the testator or planning the

testator’s will and causing him to execute it.20 Procurement shifts the burden to the

proponent of the will to show beyond a reasonable doubt that the will was not the result of

undue influence and that the testator had the mental capacity to make the will.21 The

existence of a confidential relationship between a primary beneficiary and a testator gives rise

to a rebuttable presumption of undue influence.22 If a confidential relationship exists, the

beneficiary and proponent of the will is required to prove by a preponderance of the evidence



       17
            Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984).
       18
            Pyle, supra.
       19
            Id.
       20
            Bell v. Hutchins, 100 Ark. App. 308, 268 S.W.3d 358 (2007).
       21
            Id.
       22
            Medlock v. Mitchell, 95 Ark. App. 132, 234 S.W.3d 901 (2006).

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that he did not take advantage of the relationship such that the will was the product of undue

influence and not the result of the testator’s own volition.23 Whether two individuals have

a confidential relationship is a question of fact.24

       Here, the trial court found that Edith probably had the requisite mental capacity to

execute a will and that there was no direct evidence that appellant exerted control over

Edith’s mind causing her to draft a new will leaving everything to him. However, relying on

the supreme court in Hyatt v. Wroten,25 the court acknowledged that undue influence is

difficult of direct proof because it is usually exercised in secret. The court considered all of

the testimony and evidence and concluded that Edith’s 2006 will was the result of undue

influence. In making this determination, the court stated that regardless of whether appellant

procured the will or was in a confidential relationship with Edith, appellees met their burden

and appellant did not overcome their proof. Additionally, the court found that appellant was

not credible. From our review of the evidence, we cannot say that the court’s finding that

appellant exerted undue influence over Edith is clearly erroneous. Accordingly, we affirm.

       Affirmed.

       GLADWIN, C.J., and WOOD, J., agree.

       Dover and Zolper, by: Dennis M. Zolper; and Chrestman Group, PLLC, by: Keith L.
Chrestman, for appellant.

       Dick Jarboe, for appellees.



       23
            Id.
       24
            Id.
       25
         Supra. To the extent that appellant attempts to distinguish this case from Hyatt, we
find his distinguishment unavailing and without merit.

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