                                 Cite as 2014 Ark. App. 143

                 ARKANSAS COURT OF APPEALS
                                        DIVISION I
                                       No. CV-13-459


RHONDA CLEGG and CHARLENE                          Opinion Delivered   February 26, 2014
SULLIVAN SWAIMS
                   APPELLANTS                      APPEAL FROM THE FAULKNER
                                                   COUNTY CIRCUIT COURT
V.                                                 [NO. CV-2010-725]

                                                   HONORABLE MICHAEL A.
RANDALL SULLIVAN and CAROLYN                       MAGGIO, JUDGE
MOORE
                      APPELLEES                    AFFIRMED



                                ROBIN F. WYNNE, Judge


       Rhonda Clegg and Charlene Sullivan Swaims appeal from the circuit court’s order

granting the appellees’ complaint to set aside a warranty deed executed by Charles Sullivan.

They argue that the trial court clearly erred in finding that Charles lacked the requisite mental

capacity to execute the January 2010 deed. We affirm the order of the circuit court.

       The grantor, Charles, had three living children: appellant Charlene and appellees

Randall Sullivan and Carolyn Moore. Appellant Rhonda is Charlene’s daughter. During his

life, Charles acquired approximately 226.77 acres of real property in Faulkner County. He

died in February 2010, at the age of ninety-four, just over a month after executing the

warranty deed at issue in this case.1 The warranty deed, dated January 6, 2010, was executed


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        His wife Jewell owns the property on which her and Charles’s home was located, and
that property is not at issue.
                                  Cite as 2014 Ark. App. 143

by Charles and his wife Jewell and granted to Charlene and Rhonda 226.77 acres for the sum

of $50,000 ($1500 cash in hand, with the remaining $48,500 to be paid in monthly

installments of $500 with an interest rate of 5.5% per annum), with a life estate reserved in

Charles and made subject to the rights of Randall and Carolyn to continue residing on the

one square acre surrounding their respective mobile homes until such time as he or she

vacated the property. The warranty deed was executed on the same day as Charles’s last will.

Previous wills, executed in 1999 and 2009, had provided that each of the three children

would be vested with the respective shares of the property upon which they resided (per the

2009 will, approximately 61 acres to Randall, 70 acres to Carolyn, and 97 acres to Charlene).

       After Charles’s death on February 8, 2010, appellees filed a complaint to set aside the

deed on the grounds that Charles was not competent to execute the deed due to his advanced

age and declining mental health or, alternatively, that he was the victim of undue influence

“because of the unreasonable and illogical terms of this transaction and the gross inadequacy

of the consideration exchanged.” A bench trial was held on February 5 and 6, 2013. In its

order setting aside the deed, the trial court found as follows:

               Several of Charles Sullivan’s acquaintances testified at trial that they had noticed
       that Charles Sullivan’s mental health had declined markedly in the several months
       before his death. There was testimony that he had trouble recalling the names of his
       friends and family members and that he could no longer remember familiar events that
       had happened in the past.

              Dr. David Lipschitz’s testimony from his deposition was introduced at trial. Dr.
       Lipschitz testified that he saw Charles Sullivan quite frequently in the months
       preceding his death. He noted that Mr. Sullivan was experiencing hallucinations, had
       trouble recalling names, faces of familiar people, would get lost in familiar places, had
       trouble with word finding, would lose his train of thought, had poor concentration
       and focus, increased confusion, slowed cognition, paranoia, impairment with decision
       making, and increased depression. Dr. Lipschitz’s patient notes on Charles Sullivan


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       were consistent with the above symptoms from July of 2009 thru December of 2009.
       Dr. Lipschitz further stated in his deposition that he “would say anybody over the age
       of 80 is . . . subject to influence” and that “we always have to understand that people
       who get older are vulnerable. They’re vulnerable to financial scams and they’re
       vulnerable to abuse. And people who have memory loss are substantially more likely
       to be taken advantage of.” Dr. Lipschitz was unable to diagnose Mr. Sullivan without
       neuropsychologic testing, but based on what he had seen, he guessed that Charles
       Sullivan suffered from the Lewy body variant of Alzheimer’s. Dr. Lipschitz was also
       of the opinion “that by the time they [his family] were requesting a will change, he
       [Charles Sullivan] was not cognitively cable [sic] of being independent” and “his illness
       [was] too advanced to make independent decisions.”

              Before the Warranty Deed was executed, William Adkisson, the attorney who
       prepared the deed and wills, recommended to Charles Sullivan’s family that Mr.
       Sullivan go to a doctor to be declared competent before any document execution. By
       his own testimony, William Adkisson expected a controversy and was aware that
       competency would likely be an issue. An appointment for testing had been made, but
       the family cancelled it because Charles Sullivan was in too poor of health to be tested
       for competency. Regardless, an appointment was made with attorney Adkisson to
       execute the warranty deed in question and Charles Sullivan’s last will and testament.
       Charles Sullivan was accompanied by his wife Jewell Sullivan, daughter Charlene
       Sullivan Swaims, and granddaughter Rhonda Clegg at the attorney’s office.

              Mr. Adkisson stated that Charles Sullivan’s wife, Jewell Sullivan, was the
       “interpreter,” and did all of the talking for Mr. Sullivan. It is undisputed that at the
       time of the execution of the deed and last will and testament that Charles Sullivan’s
       speech was not good, that he could not hear, and that Jewell expressed his intentions
       for him. Marilyn Ruple, notary public for the deed, testified that she recalls Charles
       Sullivan being unable to sign the deed himself; that his wife steadied, or guided, Mr.
       Sullivan’s signature.

               There was also testimony at trial that land similarly situated has been purchased
       or sold at a minimum of $1,000.00 an acre to upwards of $10,000.00 an acre. The
       plaintiffs’ complaint alleges that a 2010 appraisal of the 226.77 in question valued the
       land at approximately $7,000 per acre, an aggregate value upwards of $1,500,000.00.
       The deed in question conveyed the land for consideration of $50,000.00, or $220.49
       per acre.

              Upon review of the parties’ pleadings, exhibits, arguments, and weighing the
       credibility of the testimony before it, this Court finds that the deed executed on
       January 6, 2010 by Charles Sullivan should be and hereby is set aside due to the
       grantor’s mental incapacity at the time of the execution.

Appellants filed a timely notice of appeal on February 28, 2013.

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       The determination of whether a deed is void because of the mental incapacity of the

grantor is measured by his or her mental ability at the time of the execution of the deed.

Munzner v. Kushner, 2010 Ark. App. 196, at 6, 375 S.W.3d 647, 651 (citing Andres v. Andres,

1 Ark. App. 75, 83, 613 S.W.2d 404, 409 (1981)). If the grantor is mentally competent at the

time he executes the deed at issue, the deed is valid. Id. The test of mental competency to

execute a deed was set forth by our supreme court in Donaldson v. Johnson, 235 Ark. 348, 359

S.W.2d 810 (1962), as follows:

               If the maker of a deed, will, or other instrument has sufficient mental capacity
       to retain in his memory, without prompting, the extent and condition of his property,
       and to comprehend how he is disposing of it, and to whom, and upon what
       consideration, then he possesses sufficient mental capacity to execute such instrument.
       Sufficient mental ability to exercise a reasonable judgment concerning these matters
       in protecting his own interest in dealing with another is all the law requires. If a person
       has such mental capacity, then, in the absence of fraud, duress, or undue influence,
       mental weakness, whether produced by old age or through physical infirmities, will
       not invalidate an instrument executed by him.

Id. at 352, 359 S.W.2d at 813 (citations omitted). The mental capacity of the maker of a trust

or deed is presumed, and the burden rests on the contestants to prove incapacity by a

preponderance of the evidence.2 Rose v. Dunn, 284 Ark. 42, 46, 679 S.W.2d 180, 183 (1984).

       This court reviews matters in equity de novo on the record. The standard of review

of a circuit court’s findings of fact after a bench trial is whether those findings are clearly

erroneous. Munzner, supra. A finding is clearly erroneous when, although there is evidence to



       2
         Appellants cite Braswell v. Brandon, 208 Ark. 174, 185 S.W.2d 271 (1945), for the
proposition that cancelling a deed requires “clear, cogent and convincing” evidence. In fact,
when it is contended that a deed was obtained by duress or undue influence, the law requires that the
proof be clear, cogent, and convincing before the deed can be set aside. See Thorn v. Pierson,
2011 Ark. App. 206, at 2. Here, the deed was not set aside based on a finding of undue
influence, so the burden was by a preponderance of the evidence.

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support it, the reviewing court on the entire evidence is left with a definite and firm

conviction that a mistake has been made. Id. In reviewing a trial court’s findings of fact, we

give due deference to the trial judge’s superior position to determine the credibility of

witnesses and the weight to be accorded to their testimony. Id.

       Appellants contend that the relevant evidence presented at trial showed that Charles

did have the mental capacity to execute the warranty deed. They cite several cases, including

Cullins v. Webb, 208 Ark. 631, 187 S.W.2d 173 (1945), and Andres, 1 Ark. App. 75, 613

S.W.2d 404, for the proposition that it is the grantor’s mental capacity at the time the deed is

executed that is relevant to whether he had the requisite mental capacity. Appellants point to

the testimony of Jewell, attorney Bill Adkisson, and Adkisson’s longtime secretary Marilyn

Ruple, as well as their own testimony, that Charles possessed the requisite mental capacity on

the day the deed was executed. They contend that the trial court failed to credit this relevant

testimony and instead relied on testimony that was irrelevant because those witnesses had not

observed Charles on the day the deed was executed or even within a reasonable proximity

to that time. The trial court, however, was not required to credit the testimony of appellants’

witnesses.

       On this record, giving the proper deference to the trial court’s weighing of the

credibility of the witnesses, we cannot say that the trial court clearly erred in finding that

appellees had proved Charles’s mental incapacity by a preponderance of the evidence.

Therefore, we affirm.

       Affirmed.
       PITTMAN and BROWN, JJ., agree.
       James Gregory Crumpton, for appellants.
       Daniel W. Marvin, for appellees.

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