                               Cite as 2015 Ark. App. 279

                ARKANSAS COURT OF APPEALS
                                      DIVISION II
                                     No. CV-14-229


                                                Opinion Delivered APRIL 29, 2015

MARCIA JANE SHEPHERD                            APPEAL FROM THE PULASKI
                   APPELLANT                    COUNTY CIRCUIT COURT,
                                                TWELVETH DIVISION
V.                                              [NO. 60PR-2011-1304]

                                                HONORABLE ALICE S. GRAY,
JAMES JONES                                     JUDGE
                                APPELLEE
                                                AFFIRMED



                             DAVID M. GLOVER, Judge


       John H. Jones died in hospice care at the age of sixty-six on July 17, 2011. Two days

before his death, he executed a power of attorney and last will and testament. The will

bequeathed John’s personal and household effects to his half-sister, appellant Marcia Jane

“Janey” Shepherd; $5,000 each to siblings James Taylor Jones (appellee), Elizabeth Allison,

and Virginia Crawford; $15,000 each to siblings Eugene Jones and James E. Jones, Jr.; $5,000

to St. Luke’s Methodist Church; and left the remainder of his estate to Janey and to Madge

Helm, a friend, in equal shares. The value of John’s estate totaled over $415,000, including

more than $118,000 in savings bonds and over $114,000 from two joint accounts he had held

with his aunt, Eula Ruth Harrison, who predeceased him by four days.

       On July 21, 2011, Arvest Trust Company (Arvest) petitioned to probate John’s will

and for appointment to administer John’s estate. An order admitting the will to probate and
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appointing Arvest as personal representative of the estate was filed on July 22, 2011. A notice

of contest of John’s will was filed by James Taylor Jones on October 28, 2011. After a

hearing on the matter, the Pulaski County Circuit Court found that John’s will should be

denied admission to probate. The trial court set aside and vacated that part of the July 22,

2011 order admitting the will to probate, finding that the will was not properly executed by

John, that John lacked testamentary capacity at the time his will was executed, and that the

will was procured by undue influence by Madge Helm and Janey Shepherd. The trial court

further found that a confidential relationship existed between John, Madge, and Janey. Janey

now appeals, arguing that the trial court erred in finding that the will was not properly

executed, that John did not have the testamentary capacity to execute the will, and that the

will was procured by undue influence by Madge and Janey. We affirm.

                                         The Hearing

       At the hearing to contest the will’s admission to probate, the following facts were

established by testimony. John had three siblings from his father’s second marriage—James

Taylor Jones, Eugene Jones, and Virginia Crawford—and three half-siblings from his father’s

third marriage—Janey, Elizabeth Allison, and James E. Jones, Jr. John also had an aunt, Eula

Ruth Harrison (Aunt Sissy), with whom he had lived since he was nineteen.

       In 2009, Becky Parcher, a trust administrator for Arvest, met with Eula Ruth for the

purpose of estate planning; when John expressed an interest in estate planning during that

meeting, Eula Ruth put off that discussion, and no estate planning was done on behalf of John

at that time. However, Eula Ruth, using attorney Lori Holzwarth, drafted a trust for some

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of her assets, which provided that, upon her death, eighty-two percent of the trust assets

would be placed in another trust for John’s benefit during his lifetime. Eula Ruth predeceased

John, passing away on July 13, 2011. Parcher notified Holzwarth of Eula Ruth’s death on

July 14, 2011; during that conversation, Parcher mentioned to Holzwarth that John had been

interested in having some estate planning done in 2009 but that he was currently in hospice

care. Before being placed in hospice care on July 8, 2011, John had been in St. Vincent’s

Hospital in June 2011 with diagnoses of atrial fibrillation, pulmonary embolism, pulmonary

fibrosis, aortic aneurysm, pneumonia, and depression; he was discharged from the hospital and

briefly stayed with Janey at her home before being readmitted to St. Vincent’s. John was

never told that he was in hospice or that Eula Ruth had died. Holzwarth met with John at

hospice on July 14, 2011; Janey and Madge were present at that meeting. Holzwarth returned

to hospice on July 15, 2011, with a will for John to sign and a durable power of attorney in

favor of both Janey and Madge. Both documents were signed that day. John died on July

17, 2011.

       Various people testified at the hearing as follows. Larry Jones, John’s nephew, testified

that family meant a lot to John, but he had different relationships with his siblings and with

Eula Ruth; John had lived with Eula Ruth since he was nineteen; John was smart but had

some quirks and was a little slow; Eula Ruth took care of John and was like a second mother

to him; and the two were inseparable. Larry stated that Eula Ruth needed some help with

things such as shopping and going to appointments, but that while John was appreciative of

Eula Ruth’s friend, Madge, for helping Eula Ruth when she needed it, he did not like how

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involved Madge was in his and Eula Ruth’s “personal life and business,” specifically their

finances.

       Larry further testified that he visited John in hospice care on July 15, 2011, and there

was a sign on John’s door instructing visitors not to tell John that he was in hospice. Larry,

who had been a combat medic in the military for twenty years and had served three combat

tours, said that he was shocked when he saw John because he looked bad. Larry stated that

John was not aware of what was going on around him, his eyes were closed and his mouth

was open, he had very labored breathing and would stop breathing for up to fifteen seconds

at a time, he was not conscious, and he was not aware that he (Larry) was in the room with

him. Larry stated that he knew John was “at the end.”

       Larry testified he was present when Holzwarth arrived at John’s room on July 15,

2011; when she arrived, John was on his back with his eyes closed and his mouth open. He

said Holzwarth introduced herself to him as John’s attorney and stated she had a power of

attorney and a will for John to sign; she made everyone leave the room except Larry and two

other people; and she began explaining the documents to John and telling him that he needed

to sign them. Larry said that he asked what medications John was taking, and the nurse told

him morphine and an anti-anxiety medication. Larry testified he took John’s hand and asked

him if he wanted to sign, but that John’s hand was limp and John did not say anything to him.

Larry stated that when he got no response from John, he placed his hand on top of John’s

hand and wrote John’s name on both the power of attorney and the will. According to Larry,

John was unable to sign his name, John did not request that Larry sign for him, and he (Larry)

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also had to sign the documents himself as a witness to John’s mark, stating that he helped John

sign because John was unable to do so himself. Larry said that he signed because he thought

he was helping John. Larry further testified that John did not know that Eula Ruth had died

at the time the will was executed.

       Holzwarth testified that when Becky Parcher called to let her know that Eula Ruth

had died, she told Parcher that John had never called for an appointment, so a will had never

been prepared for him; she told Parcher she would call hospice and see if John wanted her to

come see him. Holzwarth said she initially was told that John was not able to talk to her, but

an hour later she received a call that John wanted to talk to her. Holzwarth said that when

she arrived at hospice on July 14, 2011, Janey and Madge were in John’s room, and that Janey

specifically asked her not to tell John that Eula Ruth was deceased. Holzwarth said that she

introduced herself to John as Eula Ruth’s attorney and told him that Parcher had told her that

he wanted to discuss a will. Holzwarth testified that she asked Madge and Janey to leave the

room so she could talk to John, but John was unable to give her more than one- or two-word

answers, and when she asked about what he wanted to do in his will, he told her that Madge

knew what he wanted. Holzwarth said she asked John if he wanted Madge to come in and

tell her how he wanted his estate handled, and he told her yes. Holzwarth testified that, from

the beginning, John stated that Eula Ruth was to get everything. She asked John that, if Eula

Ruth passed away first, what did he want done then, and it was at that time that Madge

recited the specific bequests to his siblings and to the church; then Madge said John wanted

her to have half of what was left. Holzwarth said John confirmed the statement. She testified

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that as far as she knew, John did not know that Eula Ruth had died. Holzwarth further stated

that John never mentioned to her the amount of property he had, and she had to prompt him

regarding his assets.

       Holzwarth stated that she returned with the documents on July 15, 2011, but John was

asleep when she arrived; she returned an hour later, but it was her opinion that he was still

not awake enough to sign the documents. Holzwarth stated she returned for a third time later

that afternoon, at which time the documents were signed. Holzwarth said she prepared the

will as if John was going to sign by mark, and she asked Larry Jones if he would help John

sign a mark, to which Larry agreed without objection. Holzwarth testified that she told John

this was his last will and testament; she read off his siblings’ names; and she went through the

disposition of the will, including that the remainder of his estate, after bequests and debts,

would be split equally by Janey and Madge. She testified that John told her that he wanted

the witnesses to witness his signature and that it looked to her as if he signed his own name.

She also stated that at the time John signed his will, he thought Eula Ruth was alive, so he

would not know that he owned the joint accounts outright.

       Parcher testified that the only action she took was to call Holzwarth to notify her that

Eula Ruth had passed away, and when Holzwarth mentioned that they had never done any

estate planning for John, she let Holzwarth know that John was in hospice. Parcher said part

of John’s estate was in Series EE savings bonds; Eula Ruth had asked that the bonds be

removed from the house; and Madge had brought the bonds to her in a paper bag. Parcher

stated she had never talked to John about any disposition he desired in his will.

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       Madge testified she and Eula Ruth had been friends for twenty-five or thirty years;

John told people that she was the big sister he never had and always wanted; John had a lot

of confidence in her; John wanted her to tell Holzwarth what he wanted in his will because

they had discussed it prior to John entering hospice; they had never discussed the property

John owned and she had no idea what John owned when he died; she and Janey were there

when Holzwarth came to see John on July 14; to her knowledge, John did not know that

Eula Ruth had died at that time and she had not told him; when Holzwarth was told what

John wanted in his will only she, Holzwarth, and John were in the room; she was not in the

room when the will was executed; she signed documents for John when he went into hospice

and at St. Vincent’s, even though she did not have a healthcare power of attorney; she also

signed a Do Not Resuscitate order at St. Vincent’s on John’s behalf; and the institutions

allowed her to sign because John did not want to do so. Madge said she cooked and went

grocery shopping for John and did whatever else John wanted her to do. She disputed the

testimony that John did not trust her.

       James Jones, Jr., testified that John appreciated the relationship Madge had with Eula

Ruth because Madge helped them out; but John had also remarked that Madge spent a lot

of time at their house and was always on the computer in Eula Ruth’s room, and she would

not buy the groceries he liked, which made him mad. It was James’s opinion that the will did

not seem like his brother’s wishes because John thought highly of his brothers and sisters;

James was surprised that Madge was getting almost half of John’s estate.



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       James Taylor Jones testified that he and John were not close but that he was able to

visit John on the last day of his life when he came home for Eula Ruth’s funeral. James stated

it alarmed him that John had not been told that he was in hospice or that Eula Ruth had died.

James stated that if John’s will had been written when John believed Eula Ruth was alive, all

of his estate would have gone to her.

       Janey testified she signed documents both at St. Vincent’s and at hospice because John

had asked her to sign whatever needed to be signed. She stated it was her opinion the will

represented John’s wishes, and Madge relayed what John wanted in his will because he was

unable to talk in his condition. Janey said Madge and John were friends, and John told many

people how thankful he was to have Madge to help with errands. Janey said her relationship

with John was closer than with her other siblings; the way John’s will was “laid out” was not

surprising to anyone in her family, although they said it was; she did not know how much

property John had when he died; and she did not know if John knew how much he had at

the time of his death.

       Jennifer Hein, a social worker for hospice home care, testified she witnessed John

execute his will. Reading from her notes from July 14, 2011, Hein stated that John shook

his head that he wanted his will to be witnessed and he appeared to be understanding what

the attorney was saying to him. Hein stated she had no recollection of the signing of the will

or Larry helping John to sign other than what was in her notes. Hein stated she would not

have witnessed it if she believed John had no understanding of what was happening.



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However, Hein stated she did not look at the entire will, she did not recall the content of the

will, she did not know if the entire will was read, and she did not read the entire will herself.

       Dr. Henry Simmons testified that he reviewed the medical records and concluded that

the amount of morphine and Ativan John was receiving were therapeutic amounts, and

John’s heart and respiratory rates were good on July 15, as were his blood pressure and oxygen

saturation. He stated John was anxious but in no apparent distress. Dr. Simmons stated John

was not continuously depressed or sluggish due to a buildup of drugs in his system. It was

Dr. Simmons’s opinion that from a medical standpoint, John was alert and awake and well

oxygenated on both July 14 and 15. He stated it was not uncommon for a patient with end-

stage lung disease to answer questions with single words. Dr. Simmons said it was clear from

the medical records that John was quite a bit sicker by July 16, the day before he died.

                                       Standard of Review

       We review probate matters de novo but will not reverse the probate court’s findings

of fact unless they are clearly erroneous. In the Matter of the Estate of Kemp v. First Nat’l Bank

& Trust, 2014 Ark. App. 160, 433 S.W.3d 911. 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.

Id.




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                            Testamentary Capacity & Undue Influence

       Janey contends that the trial court erred in finding that John did not have the

testamentary capacity to execute his will and in finding that the will was a product of undue

influence. The questions of mental competency and undue influence are so closely related

and interwoven that we consider them together. Sullivant v. Sullivant, 236 Ark. 95, 364

S.W.2d 665 (1963). In a case where the mind of the testator is strong and alert, the facts

constituting undue influence would be required to be far stronger than a case in which the

mind of the testator was impaired, such as by disease or advancing age. Short v. Stephenson,

238 Ark. 1048, 386 S.W.2d 501 (1965). Testamentary capacity means that the testator must

be able to retain in his mind, without prompting, the extent and condition of his property,

to comprehend to whom he is giving it, and relations of those entitled to his bounty. Id. The

relevant inquiry is not the mental capacity of the testator before or after a challenged will is

signed, but rather the level of capacity at the time the will was signed. Pyle v. Sayers, 344 Ark.

354, 39 S.W.3d 774 (2001). Undue influence is defined as “not the legitimate influence

which springs from natural affection, but the malign influence which results from fear,

coercion, or any other cause that deprives the testator of his free agency in the disposition of

his property.” Short, 238 Ark. at 1049, 386 S.W.2d at 501 (citing McCulloch v. Campbell, 49

Ark. 367, 5 S.W. 590 (1887)). Undue influence may be inferred from the facts and

circumstances of a case, and cases involving questions of undue influence will frequently

depend on a determination of witness credibility. Simpson v. Simpson, 2014 Ark. App. 80, 432

S.W.3d 66.

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       With regard to testamentary capacity and undue influence, the trial court found as

follows:

       30. The information regarding the distributions that were set forth in Decedent’s will
       was provided to Lori Holzwarth by Madge Helm. Further, a confidential relationship
       existed between Madge Helm, Marcia Jane Shepherd, and Decedent as evidenced by
       the fact that Helm and Shepherd signed documents on behalf of Decedent at the time
       of his admission to Hospice Home Care and, later, acquired power of attorney over
       Decedent simultaneously to the execution of Decedent’s will. The Court therefore
       finds that the proffered will was procured by Madge Helm and Marcia Jane Shepherd.

       31. Decedent, at the time of the making and execution of the proffered will, lacked
       the requisite testamentary capacity to make and execute a valid will. Decedent was in
       hospice care, severely ill, and regularly medicated on morphine when attorney
       Holzwarth contacted him, unsolicited, regarding making a will. Madge Helm
       described to attorney Holzwarth how Decedent’s property should be devised in the
       will, and attorney Holzwarth followed those instructions. Helm, attorney Holzwarth,
       and Marcia Jane Shepherd did not tell Decedent that Eula Ruth Harrison had already
       died, even though all three were aware at the time the proffered will was executed that
       Harrison was dead. None of these individuals, and notably Holzwarth—the attorney
       who was drafting the will and who owed a fiduciary duty to Decedent—told Decedent
       about the effect Harrison’s death would have on his own estate. The three individuals
       did not simply fail to tell Decedent he was in hospice care or that his aunt had already
       died. They all made conscious decisions to withhold this information from him.
       Decedent was unable to speak and could barely communicate with those around him,
       if at all. He was wholly unable to sign his own name without substantial assistance.
       Attorney Holzwarth had to prompt from Decedent information regarding his property.
       It is clear that Decedent lacked the ability, at the time of the making and execution of
       the proffered will, to retain in his memory, without prompting, the nature and extent
       of his property or to comprehend how he was disposing of his property.

       A party challenging the validity of a will must usually 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; however, there are certain

circumstances that will cause the burden to shift to the proponent of the will to disprove

undue influence. Simpson, supra. One of those circumstances is when a beneficiary procures

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

planning the testator’s will and causing him to execute it. Id. 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. Id.

Whether a will was procured by undue influence is a question of fact for the trier of fact.

Medlock v. Mitchell, 95 Ark. App. 132, 234 S.W.3d 901 (2006). The existence of a confidential

relationship between a primary beneficiary and a testator also gives rise to a rebuttable

presumption of undue influence. Simpson, supra. Whether two individuals have a confidential

relationship is a question of fact. Medlock, supra. A confidential relationship arises between

a person who holds power of attorney and the grantor of that power. Id.

       With respect to John’s testamentary capacity, Janey’s argument attacks the credibility

determinations made by the trial court. Janey argues that James Taylor Jones offered “no

credible evaluation” of John at the time of the execution of the will and “therefore failed to

meet his burden on this issue.” However, this ignores Larry Jones’s testimony that John was

not conscious and was unaware of what was happening at the time of the execution of the

will; that John did not respond to attorney Holzwarth when she asked if he wanted to sign

his will; that John did not say anything to Larry when Larry asked if he wanted to sign the

will; and that John could not take an active part in signing his name to the will. According

to Larry, John was unable to retain in his mind, without prompting, the extent and condition

of his property or to comprehend to whom he was giving it. Furthermore, John was never

told that Eula Ruth had passed away and that the joint accounts he held with her now

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belonged solely to him and would be part of his estate, nor was there any evidence that John

had any idea of the value of his savings bonds; in fact, Janey’s own testimony indicated that

she did not know if John even knew the extent of his property, thus bolstering the fact that

John was unaware of the extent of his estate. On this evidence, we cannot say that the trial

court’s finding that John did not have the testamentary capacity to execute his will is clearly

erroneous.

       Janey does not specifically contest the trial court’s findings that she and Madge

procured the will and that both she and Madge were in confidential relationships with John.

Rather, she argues that there was no testimony that Madge used coercion, fear, or any other

abuse to elicit the terms of John’s will and circumvent John’s free will to dispose of his

property as he desired. We cannot agree. John was in hospice care, a fact of which he was

unaware per Janey and Madge’s instructions; he was medicated on morphine; he was not told

that Eula Ruth had passed away, again per Janey and Madge’s instructions; Madge signed a

Do Not Resuscitate order while John was a patient at St. Vincent’s Hospital in June 2011,

despite the fact that she did not have power of attorney and was not authorized to do so;

Janey and Madge signed documents for John on July 8, 2011, when he entered hospice,

despite the fact that neither had power of attorney; and Madge was present during the

discussion of John’s will and in fact was the person who instructed attorney Holzwarth as to

the terms of the will that Madge said John desired. Given this evidence, we cannot say that

the trial court’s finding of a presumption of undue influence, and the failure to rebut such a

presumption, is clearly erroneous.

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      Because we affirm the trial court’s findings that John did not have the testamentary

capacity to execute his will and that the will was a product of undue influence, it is

unnecessary to address Janey’s argument that the will was not properly executed.

      Affirmed.

      KINARD and HIXSON, JJ., agree.

      Kimberly Eden, for appellant.

      Richard F. Hatfield, P.A., by: Richard F. Hatfield, for appellee.




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