APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT. NO. PR11-62-1. HONORABLE TOM COOPER, JUDGE.
Norton & Wood, L.L.P., by: Cory J. Floyd and Justin Bradford Smith, for appellant.
Hatfield, Sayre & Brockett, by: Richard F. Hatfield, for appellee.
KENNETH S. HIXSON, Judge. WHITEAKER, J., agrees. BROWN, J., concurs.
KENNETH S. HIXSON, Judge
This is an appeal concerning the probate of Dulaney Elbridge (" D.E." ) Sharp's last will and testament executed on June 4, 2010 (hereinafter referred to as the " 2010 will" ), and the effect of a no-contest clause contained within that will. The relevant parties are D.E.'s two sons, appellant Gary E. Sharp and appellee James Sharp. The 2010 will gave James substantially more assets than Gary. Gary alleged below that the 2010 will should be declared invalid because D.E. did not have testamentary capacity; that James exerted undue influence over D.E.; and that James procured the 2010 will. After a trial on the merits, the trial court ruled that the 2010 will was valid and that the no-contest clause contained therein was enforceable. Gary appeals the Sevier County Circuit Court's rulings, specifically contending that the trial court (1) erred by finding that Gary's will contest was without " good faith," and thus was not exempted from the will's no-contest clause, and (2) applied an incorrect burden of proof regarding the will's validity. We affirm because Arkansas law does not provide for a " good faith" exception to a valid will's no-contest clause in this factual situation and because the trial court did not commit reversible error in its application of the burden of proof to the evidence.
Most of the relevant facts are not in dispute. D.E. Sharp and his wife, Delta Sharp, executed reciprocal wills in 2007 giving all assets to the surviving spouse and also providing that, after certain specific bequests to the sons, the residue of the surviving spouse's estate would be divided equally between sons James and Gary. Delta Sharp died in April 2010.
D.E. was in declining health and suffered from a variety of maladies including an occasional inability to ambulate. Not long after Delta's death, D.E. visited with his long-time attorney, Randell Wright, to modify his estate plan. Attorney Wright testified that he did not see James during D.E.'s planning visit; Wright spent an hour and fifteen minutes in his office with D.E. going over his assets and the estate-planning options available to D.E. The meeting concluded.
On June 2, 2010, Wright's secretary called D.E. to advise him that the new will was ready for execution. On June 4, 2010, D.E. returned to Wright's office to execute the new will. James drove his father to the law office that day. Attorney Wright testified that James stuck his head in the door of the law office and asked if D.E. could execute his will in the car because his knee was hurting. James returned to the car. Shortly thereafter, Wright and his secretary, Brandi Carver, went outside to the car with the new documents. James was sitting behind the wheel, and D.E. was sitting in the front passenger seat. D.E. opened the door, swung his legs out of the passenger door, and exchanged pleasantries. Wright needed a second witness because Carver was going to notarize the signatures. Attorney Wright handed D.E. a copy of the 2010 will to review while Wright went next door to the post office and asked the postmaster, Alan Roden, to witness a will. They returned, and D.E. then executed his 2010 will before two witnesses (attorney Wright and postmaster Roden) as well as a notary public (secretary Carver). None of the witnesses recalled James speaking at all during this process.
In the 2010 will, D.E. recognized that his wife had predeceased him and that he had two sons: James, who lived nearby in Lockesburg, Arkansas, and Gary, who lived in Prosper, Texas. D.E. selected James to be the appointed executor of his estate. The 2010 will provided for a specific bequest to Gary of " the round hard rock maple dining table and six chairs and the sum of $100,000 to be his absolutely and forever." The 2010 will provided for a specific bequest to James of
[a]ny and all farm equipment and implements I might own at the time of my death, the square dining table and four chairs, any automobiles and all real property owned by me at the time of my death, including but not limited to the following real property located in Sevier County, Arkansas[.]
The 2010 will recited a legal description of several hundred acres of farmland. The residue or remainder of any of D.E.'s property was to go to James. The 2010 will also contained ...