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Shepherd v. Jones

Court of Appeals of Arkansas, Division II

April 29, 2015

MARCIA JANE SHEPHERD, APPELLANT
v.
JAMES JONES, APPELLEE

Page 352

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, TWELVETH DIVISION. NO. 60PR-2011-1304. HONORABLE ALICE S. GRAY, JUDGE.

Kimberly Eden, for appellant.

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

DAVID M. GLOVER, Judge. KINARD and HIXSON, JJ., agree.

OPINION

Page 353

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 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 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

Page 354

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 ...


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