                                Cite as 2016 Ark. App. 130


                 ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                      No. CV-15-643

                                                OPINION DELIVERED MARCH 2, 2016
 RICHARD ROBINSON
                              APPELLANT         APPEAL FROM THE CROSS
                                                COUNTY CIRCUIT COURT,
 V.                                             [NO. 19-PR-2013-26]

 ESTATE OF HARRY ROBINSON,                      HONORABLE BENTLEY E. STORY,
 SR., DECEASED, AND BENNE                       JUDGE
 ROBINSON
                      APPELLEES                 AFFIRMED



                          ROBERT J. GLADWIN, Chief Judge

       Appellant Richard Robinson appeals the order entered on December 29, 2014, by

the Cross County Circuit Court. He argues that the circuit court erred in declining to set

aside the May 17, 2011 will (Will) of his father based on findings that his stepmother,

appellee Benne Robinson, met her burden of proving beyond a reasonable doubt that his

father possessed mental capacity, testamentary capacity, and competency to make and

execute the Will and that she also met her burden of proving beyond a reasonable doubt

that she did not procure the will through undue influence. We affirm.

                                           I. Facts

       Harry Robinson, Sr. (Decedent), died on January 10, 2013, at age eighty-six. He

had suffered for several years from Parkinson’s disease and various other illnesses, including

dementia. Decedent was predeceased by his first wife, Jean Robinson, who died in 1995.

They had three sons together. Richard is the only living child of Decedent. The youngest
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son, Lee, died several years prior to Decedent’s death. The oldest son, Harry, Jr., known as

Rudy, died on May 11, 2011. Decedent had been a farmer most of his life, and prior to

Rudy’s death, Decedent and Rudy had been engaged in a farming partnership. Neither Lee

nor Rudy had children surviving them.

       Decedent was also survived by his second wife, appellee Benne Robinson (Benne).

Decedent married Benne in 1998 when he was seventy-two years old and she was forty-

nine years old. The couple had been involved in an ongoing affair since Benne was around

twenty years old. Decedent and Benne did not have any children together.

       In October 2006, while Decedent was still able to drive, he scheduled an

appointment with his attorney, Mr. Danny Glover, and his two living sons, Rudy and

Richard, were present for that meeting. At that time, Decedent instructed Mr. Glover to

prepare a will, which provided for Benne to have their home and approximately twenty

acres and a one-half interest in cattle, and the remainder of the property was to go to his

two sons.

       Benne learned of the 2006 will and its contents sometime in 2010, subsequent to

which she scheduled an appointment for Decedent to go to Mr. Glover’s office and execute

a new will, dated October 6, 2010, and a limited durable power of attorney. That will set

out Decedent’s plan to sell 680 acres of farmland, leaving $300,000 to Rudy, $200,000 to

Richard, and the remainder to Benne.

       In February 2011, Benne made an appointment for Decedent and took him to Mr.

Glover’s office to execute a codicil to the 2010 will, which stated he was selling the property


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under contract, with ten annual payments of $40,000 to be paid to him, or if he died, to

Benne, and when the final balloon payment was made, Rudy was to receive $300,000,

Richard $200,000, and the remainder to Benne.

       When his brother Rudy died on May 11, 2011, Richard did not immediately go to

Decedent but rather went to see Rudy’s wife, Linda, with whom both Decedent and Benne

had a strained relationship. When Richard did go to Decedent’s home shortly after Rudy’s

death, he told Benne that she was not welcome at Rudy’s visitation or funeral. Mr. Glover

testified that Decedent told him that he (Decedent) was present when Richard said this.

Decedent’s caretaker, Rebecca Dixon, was also present.

       On May 17, 2011, Benne took Decedent to Mr. Glover’s office for a conference

because Decedent wanted to make a new will. The witnesses to the execution of the Will,

Casey Shaw and Paula Stroud, and notary, Cathey Haire, each testified that Decedent was

acting under his own free will and no undue influence when he signed the Will. Mr. Glover

also testified that Decedent was not acting under any undue influence when he signed the

2011 Will. Mr. Glover wrote a memo on May 19, 2011, wherein he related circumstances

concerning his meeting with Decedent outside the presence of Benne prior to execution of

the Will on May 17, 2011. There was no proof that Benne told Decedent to make a new

will, that Benne drafted the Will, or that she delivered any notes to Mr. Glover concerning

the 2011 Will.

       The Will was admitted to probate on February 20, 2013, after Decedent’s death.

Under the terms of the Will admitted to probate, Benne was the sole beneficiary. On May


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1, 2013, Richard filed a petition to set aside the will and a will contest, whereby he alleged

that (1) the Will was executed under the undue influence and/or duress of Benne; (2)

Decedent was not of sound mind and disposing memory and was mentally incapacitated at

the time; (3) the Will was procured by Benne; and (4) Decedent was not competent to sign,

in that the Will fails to mention the natural bounties of Decedent’s affections. Benne denied

all allegations.

        At trial, the circuit court ruled that Richard proved procurement of the Will and

that the burden of proof shifted to Benne. In the circuit court’s final order, the circuit court

explained that Benne had the burden to prove beyond a reasonable doubt (1) that Decedent

possessed testamentary capacity to make and execute the 2011 Will, and (2) that Decedent

made the Will without undue influence from Benne. The circuit court then specifically

found that Benne met her burden of proving beyond a reasonable doubt that Decedent

possessed mental capacity, testamentary capacity, and competency to make and execute the

2011 Will, and that Benne met her burden of proving beyond a reasonable doubt that she

did not procure the 2011 Will through undue influence. The circuit court denied Richard’s

petition in its order entered on December 29, 2014. Richard filed a timely notice of appeal

on January 26, 2015.

                           II. Standard of Review & Applicable Law

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

of fact unless they are clearly erroneous. Shepherd v. Jones, 2015 Ark. App. 279, 461 S.W.3d

351. A finding is clearly erroneous when, although there is evidence to support it, the


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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. This court reiterated in

Shepherd that

       [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. One of those circumstances is when a beneficiary
       procures the will. 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. 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. Whether a will was procured by undue influence is a
       question of fact for the trier of fact. The existence of a confidential relationship
       between a primary beneficiary and a testator also gives rise to a rebuttable
       presumption of undue influence. Whether two individuals have a confidential
       relationship is a question of fact. A confidential relationship arises between a person
       who holds power of attorney and the grantor of that power.

Id. at 11–12, 461 S.W.3d at 358 (internal citations omitted.) While the appellate court’s

review in a will contest must take into consideration that the will’s proponent bore the

burden of proof, or the burden of going forward with the evidence beyond a reasonable

doubt, the question on appeal is not whether the appellatae court has such a doubt; rather,

the question on appeal is whether the circuit court’s decision was clearly erroneous. Pyle v.

Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001).

                                        III. Discussion

       Richard argues that Benne failed to meet her burden of proving beyond a reasonable

doubt that his father possessed mental capacity, testamentary capacity, and competency to


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make and execute the will and also that she did not procure the will through undue

influence. In Shepherd, supra, we reiterated as follows:

               The questions of mental competency and undue influence are so closely
       related and interwoven that we consider them together. 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. 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. 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. 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.” 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.

Shepherd, 2015 Ark. App. 279, at 10, 461 S.W.3d at 357 (internal citations omitted).

       The circuit court stated as follows in paragraph 30 of its forty-eight page opinion:

              [Richard] asserts that Mr. Glover confirmed that there were no discussions
       with [Decedent] about the alienation of [Richard], about the nature of the claims of
       [Richard], and [Decedent]’s knowledge of the natural objects of his bounty, etc., and
       that Mr. Glover never discussed alternatives to protect [Richard] from being
       disinherited. First, it is the court’s recollection of the testimony that Mr. Glover did
       discuss with [Decedent] this alienation of [Richard]. Second, they did discuss the
       nature of [Richard]’s claim and [Decedent] told Mr. Glover that he did not want
       [Richard] to receive any inheritance unless Benne predeceased [Decedent] because
       of the way [Richard] treated Benne and the way [Richard] treated him. Third, they
       discussed [Decedent]’s knowledge of the natural objects of his bounty when
       [Decedent] told Mr. Glover that he did not want [Richard] to receive any inheritance
       except as stated above. Fourth, Mr. Glover is not required to discuss alternatives to
       protect [Richard] from being disinherited. Mr. Glover is obligated to discuss with
       [Decedent] those elements set forth above; however, it is not his obligation to
       convince [Decedent] to not disinherit [Richard]. At one point in [Richard]’s
       argument he asserts that [Decedent] did not mention his other sons. He is not
       required to mention his other sons given the fact that they predeceased him and left
       no heirs.
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       The circuit court considered Decedent’s medical records and testimony of the

witnesses, and in its opinion, stated,

               25. [Richard] offered medical records as proof that [Decedent] had suffered
       from dementia for a long period of time and that he was suffering from dementia
       when he executed the 2011 will. [Richard]’s Exhibit No. 1 begins with the
       hospitalization of [Decedent] on March 6, 2010. A “history of dementia” was
       mentioned in the History & Physical Report on March 16, 2010. Confusion was
       added by March 26th to the History & Physical Report. Dr. Cathey testified that he
       thought [Decedent] suffered from dementia and was not competent at the time of
       the March, 2010, hospitalization. Dr. Cathey did not see or treat [Decedent] after
       the March, 2010, hospitalization. Ms. Lisa Stutts, a clinician, performed a Fall Risk
       Assessment on [Decedent] on April 7, 2011, at which time she found depression,
       impaired judgment, impaired memory, and impaired decision making. Ms. Stutts
       testified on cross examination that she does not know if [Decedent] had impaired
       judgment or impaired decision-making capabilities on April 7th or not. She testified
       that if a doctor writes on a chart a diagnosis of dementia, she writes it down as well
       in subsequent reports. Memory loss on April 7th was not determined by her. The
       diagnosis of “cognitive deficit” was not based on her discussions with [Decedent].
       [Richard]’s Exhibit No. 1 also captures diagnosis by Dr. Willard Burks who was
       [Decedent]’s primary physician. His diagnosis was of confusion and dementia during
       the March, 2010, hospitalization. He also found Parkinson’s with dementia in March
       of 2011. Other medical providers also mentioned varying assessments of dementia or
       cognitive impairment. Ms. Stutts did another Fall Risk Assessment on May 20, 2011,
       and again opined depression, impaired judgment, impaired memory, and impaired
       decision making. However, as stated before, she often placed in the assessment that
       which had already been concluded by someone else. The May 20, 2011, Fall Risk
       Assessment was three days after Rudy was buried and one day after Dr. Burks had
       found [Decedent] to be competent and able to conduct his own business. Ms. Stutts’s
       assessment was part of a routine visit. Dr. Burks’s assessment was based on a clearly
       defined purpose, that being to determine [Decedent]’s competency.

       The circuit court heard other testimony from Richard’s witnesses Desmond Murphy

(Decedent’s friend), Stanley Harrison (Decedent’s cousin), and Linda Robinson (Rudy’s

widow). These witnesses testified about Decedent’s failing health and mental capacity. None




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of these people were present when Decedent executed his Will at the office of Mr. Glover

on May 17, 2011.

       Benne’s witnesses, Kevin Ward and William Ward, were involved in raising horses

and cattle. Kevin Ward knew Decedent for many years, relying on him for advice on animal

diseases and how to treat them. William Ward was a neighbor who had lived within one-

half mile of Decedent for over ten years. Both witnesses testified that Decedent was a “go

to guy” on any problems with health issues of livestock. Decedent had such knowledge

both before and after making the May 17, 2011 Will.

       Dr. Willard Burks, Decedent’s primary-care physician, gave Decedent a mental

examination to determine his competency on May 19, 2011, two days after the Will in

question was executed. Dr. Burks had known Decedent for over forty years as his patient.

They both had interests in K-Bar horses and the lineage. Dr. Burks was well aware of

Decedent’s medical condition and his aging. After examining Decedent and questioning

him, Dr. Burks concluded that Decedent was competent on May 19, 2011, to take care of

his own business concerns. Again, the operative time would be when the Will was signed

on May 17, 2011.

       After considering this testimony on the issue of testamentary capacity, the circuit

court found, to wit:

              38. The attesting witnesses and the notary public were consistent in their
       opinions that [Decedent] was competent on May 17, 2011, to discuss his will, its
       contents, his wishes and directives, and to execute the will. While the attestation
       clause does not state that the witnesses found [Decedent] to be of sound and disposing
       mind and memory, the witnesses and the notary public all stated that he was on May
       17th. They testified that Mr. Glover has a routine regarding the execution of wills
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and that he followed that routine: In Foster v. Foster, 2010 Ark. App. 594, 377
S.W.3d 497, the Arkansas Court of Appeals stated that complete sanity in a medical
sense at all times is not essential to testamentary capacity, provided that capacity exists
at the time the will is executed and that it is executed during a lucid interval. Every
person, who was present during [Decedent]’s execution of the 2011 will, testified
that he was competent at that moment to sign his will. In Foster, the Arkansas Court
of Appeals also stated:

       . . . Evidence of the testatrix’s mental condition, both before and after
       execution of the will at issue, is relevant to show her mental condition at the
       time she executed the will. Id. The test is whether, at the time the will was
       executed, the testatrix has a fair comprehension of the nature and extent of
       her property and to whom she was giving it. Id.

[Richard] offered medical evidence of [Decedent’s] mental capacity before and after
the execution of the 2011 will and the court has considered this evidence. However,
this court concludes that this evidence is not persuasive; the evidence most persuasive
came from Dr. Willard Burks, [Decedent’s] personal physician for many years who
knew him well. Dr. Burks was well familiar with [Decedent’s] physical and mental
condition. Dr. Burks testified that two days after the 2011 will was executed
[Decedent] was competent to handle his own affairs. No evidence was presented that
[Decedent] suffered from dementia on the day the 2011 will was executed. Just the
opposite evidence was presented. Mr. Glover, the two (2) attesting witnesses, and
the notary public all testified that they were satisfied that [Decedent] was competent
on the day the 2011 will was executed.

       39. [Decedent] and Benne were married for many years; she took care of him
especially during the later years of his life. She had a confidential relationship with
him as his spouse and care giver of many years. Hence, the burden of proof shifted
to her to prove beyond a reasonable doubt that [Decedent] had the testamentary
capacity to make and execute a new will.

        40. Based on the above, this court finds and concludes that on May 17, 2011,
[Decedent] possessed the mental capacity, testamentary capacity, and competency to
discuss with Mr. Glover his desires and directives for the disposition of his estate and
that he executed the will while possessing that competency. Whether [Decedent]
was of sound and disposing mind and memory on any other day except May 17th is
not as important and dispositive as his mental capacity on May 17th. Dr. Willard
Burks’s testimony along with the lay testimony of the witnesses called by [Benne],
convinces this court that [Decedent] was competent to execute his will on May 17th
and that provisions found in his will are his wishes, desires, and directives. [Richard’s]
petition is denied based on the assertion of lack of testamentary capacity. This court
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       finds that [Benne] met her burden of proving beyond a reasonable doubt that
       [Decedent] possessed the mental capacity, testamentary capacity, and competency to
       make and execute the 2011 will.

       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. The existence of a confidential relationship

between a primary beneficiary and a testator gives rise to a rebuttable presumption of undue

influence. Simpson v. Simpson, 2014 Ark. App. 80, 432 S.W.3d 66. Direct and circumstantial

evidence, such as the nature of the relations and dealings between the testator and the

beneficiaries, the extent of the property of the testator, his family connections, the claims of

particular persons upon his bounty, the situation and mental condition of the testator, the

nature and contents of the will itself and the circumstances surrounding its execution are

facts from which fraud and undue influence may be inferred. Id.

       After considering the evidence and testimony of witnesses, the circuit court found as

follows on the issue of undue influence, to wit:

               49. This court finds that [Decedent]’s will was not executed under the undue
       influence and/or duress of [Benne]; this court finds that [Decedent] was of sound
       mind and disposing memory and was not mentally incapacitated at the time of the
       execution of the 2011 will; this court finds that [Decedent] comprehended the
       nature, extent, and disposition of his estate; this court finds that the 2011 will was
       not procured by [Benne]; this court finds that [Decedent] was competent to sign the
       2011 will and that the will does mention the natural bounties of [Decedent]’s
       affections for his sole surviving son, [Richard], by the contingent remainder left to
       him in the event Benne predeceased [Decedent]; and this court finds that there is no
       requirement that a will must mention predeceased children in order to be valid.

              50. In summation, this court finds and concludes that [Benne] proved beyond
       a reasonable doubt that she did not procure the 2011 will through undue influence.
       This court finds and concludes that [Benne] proved beyond a reasonable doubt that
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       [Decedent] was competent to execute his 2011 will and was of sound mind and
       disposing memory at that time.

       As with Decedent’s testamentary capacity, the circuit court heard testimony from

multiple witnesses presented by each party and presented a comprehensive analysis of the

evidence in its opinion. To reiterate our standard of review, we will reverse a circuit court’s

findings on the questions of both testamentary and mental capacity and undue influence

only if they are clearly erroneous, giving due deference to the superior position of the circuit

judge to determine the credibility of the witnesses and the weight to be accorded their

testimony. Harbur v. O’Neal, 2014 Ark. App. 119, 432 S.W.3d 651; see also Simpson, supra.

       From our review of the evidence, it is clear that the circuit court considered all of

the testimony and evidence presented and thoroughly analyzed it in the comprehensive

forty-eight-page opinion. We hold that the circuit court’s findings on these issues were not

clearly erroneous. Accordingly, we affirm.

       Affirmed.

       VIRDEN and GRUBER, JJ., agree.
       Andrea Brock, P.A., by: Andrea Brock; and Rita Reed Harris, P.A., by: Rita Harris, for
appellant.
       John D. Bridgforth, P.A., by: John D. Bridgforth, for appellees.




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