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Darr v. Billeaudeau

Court of Appeals of Arkansas, Division III

January 24, 2018

TAMI THOMAS DARR APPELLANT
v.
FRANCIS JEAN BILLEAUDEAU APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTEENTH DIVISION [NO. 60PR-14-772] HONORABLE RICHARD MOORE, JUDGE

          Oscar Hirby and Robert S. Tschiemer, for appellant.

          Kamps & Stott, PLLC, by: David W. Kamps and Adrienne M. Griffis, for appellee.

          RITA W. GRUBER, Chief Judge

         Appellant Tami Darr appeals from the Pulaski County Circuit Court's order setting aside a will, removing Ms. Darr as personal representative, and appointing the son of appellee Francis Jean Billeaudeau as personal representative. Ms. Darr contends that the court erred in setting aside the will and in excluding an audiotape recording of the execution of the will. We affirm the circuit court's order.

         The decedent, Stephen Michael Herman, passed away on April 18, 2014, leaving a will that he executed on January 14, 2014, of which Ms. Darr was the sole beneficiary. Ms. Darr's mother had been married to Mr. Herman for three years in the 1970s; Ms. Billeaudeau was Mr. Herman's older half sister. Mr. Herman had no other family.

         At trial, James Drew testified that he was a close friend of Mr. Herman's, had known him for more than thirty years, and had worked with him for almost nineteen years. He testified that he spoke to Mr. Herman weekly during 2013 and noticed in late 2013 that Mr. Herman was in a state of physical decline. He also testified that Mr. Herman's short-term memory "was gone" and that, on Veterans' Day in November 2013, while they were having lunch, Mr. Herman had a seizure after which paramedics took him to Baptist Hospital where he remained for at least a week.

         Hospital records introduced at trial revealed that Mr. Herman was later admitted to UAMS Medical Center on December 18, 2013, suffering from memory loss, confusion, paranoia, and inability to care for himself. He remained hospitalized until December 27, 2013, and was diagnosed with "moderate to severe dementia." On December 26, 2013, Ms. Darr visited Mr. Herman in the hospital after having been contacted by Mr. Drew. It is not clear from the record exactly when Ms. Darr and Mr. Herman had been in touch before then. Ms. Darr testified that she had spoken sporadically with Mr. Herman by phone over the years but that neither she nor Mr. Herman had ever visited the other's home. She also said that she and her husband had visited with Mr. Herman on a bench in Park Hill after seeing each other walking in November 2013.

         Ms. Darr said that when she returned to the hospital on December 27, 2013, Mr. Herman asked her to contact an attorney to prepare a power of attorney to assist with his transfer to a rehabilitation center. Ms. Darr had a power of attorney prepared and brought the document to Mr. Herman for execution on December 29, 2013. Sometime between December 27 and 29, 2013, Ms. Darr assisted Mr. Herman in moving from UAMS to Sandalwood Healthcare, a residential rehabilitation facility. Ms. Darr's husband, Andrew Darr, began visiting Mr. Herman regularly, and on January 2, 2014, he learned that Mr. Herman did not have a will. Later that week, Ms. Darr scheduled an appointment with an attorney, Lisa Douglas, regarding preparation of a will for Mr. Herman. Ms. Darr testified that she never discussed a will with Mr. Herman or made him aware that she had made an appointment with Ms. Douglas regarding a will.

         On January 10, 2014, the Darrs met with Ms. Douglas. Ms. Darr testified that she provided Ms. Douglas with the power of attorney and with information about Mr. Herman's estate, including his property, his financial accounts, his retirement accounts, and land he owned in Roland, Arkansas. She said that she never spoke with Mr. Herman about the meeting or informed him that the meeting had taken place. Ms. Douglas drafted Mr. Herman's will, which comprised one page and provided in pertinent part as follows:

ARTICLE II.
I have no children. I give, devise, and bequeath all my property whether real, personal, or mixed, wherever, or however situated or located to Tami Thomas Darr. Because of Tami's love, care, and devotion to me, I leave all my property to her.
ARTICLE III.
I hereby nominate, constitute and appoint Tami Thomas Darr, as Executor of my estate under this, my Last Will and Testament, to serve ...

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