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Pace v. Steele

Court of Appeals of Arkansas, Division I

May 31, 2017

KATHY PACE APPELLANT
v.
CORA STEELE AND ESTATE OF RALPH STEELE, DECEASED APPELLEES

         APPEAL FROM THE LAWRENCE COUNTY CIRCUIT COURT [NO. 38PR-13-57] HONORABLE PHILIP G. SMITH, JUDGE

          Parker Hurst & Burnett PLC, by: Donald L. Parker II and Ronald S. Burnett, Jr., for appellant.

          Glenn Lovett, Jr., PLC, by: Glenn Lovett, Jr., for appellee.

          BART F. VIRDEN, Judge

         Appellant Kathy Pace appeals from the Lawrence County Circuit Court's order admitting Ralph Steele's will to probate. The primary beneficiaries of the will were Ralph's nephew, Darrell Steele, and Darrell's wife, appellee Cora Steele.[1] Pace argues that the trial court erred in not finding procurement of the will by the beneficiaries and in concluding that Ralph had the requisite mental capacity and freedom from undue influence to make the will. We hold that the trial court clearly erred in finding that there was no procurement, but we nevertheless affirm the trial court's decision admitting Ralph's will to probate.[2]

         I. Overview of Events and Medical Evidence

         Wanda, Ralph Steele's wife of approximately seventy-five years, died in March 2012. Ralph and Wanda had no children, but Ralph had many nieces and nephews, including Darrell and appellant Pace.

         In November 2012, Ralph fell and injured his knee. He was taken to the emergency room at St. Bernard's Medical Center (St. Bernard's) and given a knee brace. He then went to HealthSouth Rehabilitation Hospital (HealthSouth). Doctors later determined that Ralph had torn a muscle and needed surgery, which was performed at St. Bernard's on December 5, 2012. After Ralph was discharged, he returned to HealthSouth in mid-December 2012. Ralph then developed pneumonia and was admitted to St. Bernard's on December 23, 2012. When he was discharged on January 2, 2013, he returned to HealthSouth, where he remained until January 19.

         On January 7, 2013, during his stay at HealthSouth, Ralph signed a will. Both parties introduced medical records from St. Bernard's, HealthSouth, and the Lawrence County Nursing Center. An "Interdisciplinary Daily Document" at HealthSouth dated January 7, 2013, indicates that Ralph had "mild difficulty with appropriate decision making, " and as for his memory, he had "mild difficulty/self corrects." There is also a note on that date indicating that, on a pain-intensity scale from zero to ten, Ralph was experiencing a five.[3]A case-management-progress note dated January 7 indicates that Ralph had complained of "weakness." A bill from HealthSouth shows that Ralph had been given three hydrocodone pain pills on January 6 and three more on January 7. A progress note dated January 9 indicates that Ralph had "some mental status changes that occurred last evening" and that "his niece" had reported that he was better but "still having some confusion."[4]

         Ralph was discharged from HealthSouth on January 19, 2013. A document states that he was discharged "in care of his niece" and that Ralph required twenty-four-hour care. Ralph returned home for about a week, with Cora and Darrell taking care of him. He then sought admission to the Lawrence County Nursing Center. A capacity verification signed by Dr. Paul Vellozo and dated January 28, 2013, indicates that Ralph had "waxing and waning capacity and is able to make decisions some of the time." In an admission document dated January 28, Dr. Vellozo circled "no" in response to the question "Dementia diagnosis?" Ralph was admitted to the nursing home on January 29. Ralph did not sign a resident-responsibilities form; instead, Cora signed as the responsible party. Above her signature, the form states that "[i]f the resident is unable due to physical/mental incapacity's [sic] to understand and comprehend the above, the person named as responsible agent shall be required to review and acknowledge the basic rights as stated." At the bottom of the page beside his signature and the date of February 1, 2013, Dr. Vellozo wrote that Ralph was "unable to sign/comprehend due to dementia."

         Ralph died on July 21, 2013, at the age of ninety-four. In August 2013, Pace asserted that Ralph had died intestate and nominated herself as administrator of his estate. The trial court entered an order to that effect. Soon afterward, Cora and Darrell sought to admit Ralph's will to probate and to set aside Pace's appointment. Cora and Darrell also requested to be appointed executors of Ralph's estate pursuant to the will. Pace asked that Cora and Darrell's petition be denied because she alleged that Ralph's will had been procured by fraud and undue influence.

         II. Bench-Trial Testimony

         Dick Jarboe, an attorney who had been practicing law since 1969, testified that he had been contacted by either Cora or Darrell about preparing a will for Ralph. Jarboe first met Ralph at St. Bernard's in December 2012. Jarboe stated that he had gotten the impression that Ralph was close to Cora and Darrell and wanted to make "a significant gift" to them. Jarboe stated that he had left after only ten to fifteen minutes because Ralph had said that he was not ready to prepare the will. Jarboe said that Cora subsequently came to his law office with notes and stated that Ralph wanted to leave all his property to her and Darrell. Jarboe observed that, although there was a signature block for Ralph on Cora's notes, Ralph had not signed it. Despite this, Jarboe did not return to the hospital to visit with Ralph and did not speak with him on the telephone. Instead, he prepared Ralph's will relying on the notes given to him by Cora. Jarboe testified that he did not think it would have been better if he had seen Ralph in person to confirm that Cora's notes accurately represented how Ralph wanted his will prepared. Rather, Jarboe thought that those witnessing the signing of the will would know more about what Ralph wanted done with his property and whether he was competent to sign the will. Jarboe testified that he sent his bill for legal services to Cora.

         Lavan Nicholas testified that she had known Ralph for approximately fifty years and that she and her husband had lived near Ralph and Wanda for many years and were very good friends. Lavan was present in the room when Ralph signed the will, and she had read the will to Ralph at Darrell's request. She stated that she had then asked Ralph whether the will was what he wanted and that he had indicated it was and had not asked any questions. She said that Ralph had seemed very alert, had been sitting up in his bed, and had not appeared to be in pain. Lavan further stated that Ralph had recognized her and her husband and had asked about their daughter. She had no reservation saying that Ralph knew and ...


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