FROM THE CLEVELAND COUNTY CIRCUIT COURT [NO. 13PR-15-16]
HONORABLE HAMILTON H. SINGLETON, JUDGE
S. Tschiemer, for appellant.
Thompson "Tom" Owens, for appellee.
BRANDON J. HARRISON, Judge
Miesner appeals from a Cleveland County Circuit Court order
that approved a family-settlement agreement, distributed
assets, and awarded various costs and fees to Relyance Bank,
as administrator of the Estate of Joyce Edna Priest Allred,
deceased. On appeal, Miesner argues (1) that the petition for
appointment of a personal representative was filed by a
nonlawyer, so all the subsequent orders are null and void,
and (2) the family-settlement agreement is unenforceable. We
affirm the circuit court's decision.
detailed history of the case leading to this appeal is needed
to understand it. Joyce Allred was married to Lewis Franklin
Allred, Sr., and they had three children together- Sherry
Miesner (appellant), Janet Herring, and Lewis Franklin
Allred, Jr. Lewis Franklin Allred, Sr., passed away sometime
before 2001. Joyce apparently executed a will in 2001. In it,
she named Janet to serve as personal representative, made
some specific bequests to certain grandchildren and
great-grandchildren, and left the residue of her estate to
her three children equally. The record also contains a Joyce
Allred Trust Agreement dated 13 July 2010. That trust is
revocable, and Joyce is named as grantor and initial trustee.
Her daughters are named as successor trustees. Schedules A,
B, and C attached to the trust document describe real
property in Arkansas. The document directs that certain
distributions be made to the trust's beneficiaries on
Joyce's death. Joyce's signature is notarized,
acknowledged, and dated 13 July 2010. A quitclaim deed dated
13 July 2010 (but not filed until 14 August 2015) reflects
that some real property was deeded to the revocable trust.
Joyce also executed a durable power of attorney (effective 13
July 2010) appointing Janet Herring as her attorney in fact.
forward chronologically, the record also contains a document
titled "Allred Family Settlement Agreement"
(Agreement) dated 29 March 2012. It is an agreement between
Joyce, Sherry, Janet, and Lewis, Jr. The Agreement states,
"[T]o avoid controversy between her children, [Joyce]
believes that an independent limited guardian of her estate
should be appointed to manage her financial affairs during
her remaining lifetime." The Agreement referenced a
civil-interpleader lawsuit filed in the Cleveland County
Circuit Court regarding Joyce's accounts at Edward Jones
Company and Simmons First National Bank.
Agreement states, in part:
In consideration of the cessation of the Interpleader Action
and to avoid any further controversy regarding the management
of the financial affairs of Joyce E. Allred during her
remaining lifetime and after her death the parties agree as
(i) Upon execution of this Agreement by all parties and as
expeditiously as possible, Joyce E. Allred will Petition the
Cleveland County Circuit Court for the appointment of Pine
Bluff National Bank, or other appropriate financial
institution, as Limited Guardian for the purpose of managing
her financial affairs and payment of all properly presented
bills related to her care. Pine Bluff National Bank will take
control and manage the financial affairs of Joyce E. Allred
pursuant to this Limited Guardianship of her Estate. The
Limited Guardian will have authority to review all
transactions from June 1, 2010 forward and take any actions
it deems appropriate with respect to any transactions, other
than the advances addressed below in this Agreement.
(ii) At the death of Joyce E. Allred, and irrgardless [sic]
of any Will, pay on death designations, joint ownership
designations or beneficiary designations to the contrary, the
remaining assets of Joyce E. Allred (other than the jewelry
described in item (iii)), from all sources, including life
insurance, annuities, bank accounts, brokerage accounts,
et. cet . . . ., after payment of all valid claims
and expenses of administration will be distributed as
(A)The first $ 170, 000.00 in cash or other assets will be
distributed, divided equally to Lewis Franklin Allred, Jr.,
and Sherry Miesner to equalize advances already made to Janet
(B)The remaining assets (other than the jewelry described in
item (iii)) will be distributed, divided equally, between
Lewis Franklin Allred, Jr., Sherry Miesner and Janet Herring.
(iii) At the death of Joyce E. Allred, or if she elects,
during her life, Joyce E. Allred's jewelry will be
divided equally between Sherry Miesner and Janet Herring
. . . .
All parties agree that, after the settlement is executed,
this Agreement is a complete settlement between the parties
regarding the financial affairs of Joyce E. Allred during her
remaining life and after her death and that no legal
proceedings of any kind may be instituted by any one or more
of them against the other for actions related, in any way, to
the administration of the financial affairs of Joyce E.
Allred during her life and after her death or any transfers
of property between the parties as contemplated in this
. . . .
(b) The terms of this Agreement will bind and benefit the
parties and their successors in interest.
Agreement is signed by Joyce E. Allred, Belinda D. Allred as
"Attorney-In-Fact For Lewis Franklin Allred, Jr., "
Sherry Miesner, and Janet Herring.
2012-about two months after the Agreement had been
executed-Lewis, Jr., died. More than two years later, in
December 2014, his mother Joyce died.
July 2015, Relyance Bank filed a petition for appointment of
a personal representative in the probate division of the
Cleveland County Circuit Court. The petition states that
Joyce died intestate around 21 December 2014 and that the
bank's "interest in the estate is that of Guardian
of the Estate of Joyce Edna Priest Allred, now
deceased." The petition names Miesner and Janet as
Joyce's surviving heirs at law and lists their addresses
as "unknown." It also states that Joyce's
estate contains no real property and more than $25, 000 of
personal property. Relyance asked the court to waive any bond
requirement and to appoint it to administer the estate. The
petition is signed by Richard Metcalf, EVP, for Relyance
Bank. His signature is notarized. No attorney signature
appears on the document.
July 2015, the circuit court appointed Relyance as
administrator of Joyce's estate, finding that she had
died intestate and that the petition was unopposed. In August
2015, the Cleveland County Herald published an
advertisement notifying the public that any claims against
Joyce's estate must be made within six months and sent to
Relyance Bank c/o Owens Law Firm. In January 2016, Belinda
Allred (Lewis, Jr.'s widow) filed a claim for $85, 000
and for one-third of the estate's assets. She attached
the Agreement to her claim. Relyance objected to
Belinda's claim. The objection is signed by C. Thompson
Owens as attorney for Relyance Bank.
February 2016, Relyance filed a petition to approve the
Agreement and asked the court to ratify it. It asked for an
administrative fee of $15, 000 and an attorney's fee of
$8, 788.76 to be paid before any other claims or
distributions. The circuit court was asked to distribute the
remaining assets of the estate "pursuant to the
Relyance asked the court to deny Belinda's claim against
the estate. This new petition was signed by Richard Metcalf,
as senior vice president and trust officer of Relyance Bank.
Metcalf also signed a verification, and his signature was
notarized. A certificate of service signed by attorney Tom
Owens was attached to the February 2016 petition.
March 2016, Miesner filed a pro se affidavit objecting to
Belinda's receiving any money from the estate because she
was "not privy" to the Agreement. She alleged that
the "successors in interest" phrase in the
Agreement was ambiguous and the Agreement was silent on what
was to be done if "one kinship should predecease the
testator or another kinsman." Attached to Miesner's
objection was Joyce's 2001 will. Also attached were two
attorney-correspondence letters from April and July 2015
proposing, and rejecting, a settlement offer from Miesner and
Janet to Belinda. Miesner also objected to the administrative
fee Relyance requested and asked the court to "remedy
the situation at hand" regarding a $66, 854.87 annuity
from Protective Life Insurance Co. that had been deposited in
her personal account because she was the named beneficiary of
the policy. Miesner also claimed that there was another
annuity with Protective Life Insurance Co. to which she was
not a named beneficiary and that Relyance had not deposited
that annuity into the estate's account. Miesner attached
documentation of the annuity and a letter from Protective
Life Insurance Co. indicating that Miesner and Lewis, Jr.,
were the named beneficiaries.
April 2016, Relyance asked the court to order Miesner to turn
over to the estate any life-insurance proceeds she had
received although Miesner was the designated beneficiary on
the life-insurance contract. This petition was signed by
Chris Cummings, vice president and trust officer for ...