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Griffith v. Griffith

Court of Appeals of Arkansas, Division IV

February 14, 2018



          Law Offices of Paul D. White, P.A., by: Paul D. White, for appellant.

          The Brad Hendricks Law Firm, by: Lloyd W. Kitchens, for appellee.

          PHILLIP T. WHITEAKER, Judge

         This is a will-contest case. Appellant Teresa Griffith is the daughter of decedent Dorothy Grable; appellee Rick Griffith is Grable's son.[1] Teresa sought to admit Grable's purported 2009 will to probate in the Pulaski County Circuit Court. The circuit court admitted the will to probate and appointed Teresa as executrix of the estate. Shortly thereafter, Rick filed a will contest, objection, and petition to set aside the order admitting the will to probate. During a bench trial on the matter, the circuit court granted Rick's motion for directed verdict and subsequently entered an order declaring the previously admitted will invalid and ordering the estate to proceed as if no will existed. Teresa has brought this appeal. We affirm.

         I. Background

         Grable passed away on June 1, 2015. Less than three months after Grable's death, on August 20, 2015, Teresa filed her petition for probate of will and appointment of personal representative. Teresa attached to her petition a copy of Grable's purported will, dated September 3, 2009. She also attached to her petition proofs of will from Betty Alred, Kimberley Shanley, and Denise Choate, dated August 19 and 20, 2015. Alred had notarized Grable's will in 2009, and Shanley and Choate had signed it as witnesses at the time.

         Rick promptly filed his will contest on September 4, 2015, complaining that the order probating the will and appointing Teresa executrix had been filed without notice or service to him; that no hearing had ever been had on the petition, thus depriving Rick and his siblings of the opportunity to object; and that the will purported to leave the "great majority of the estate" to Teresa and small shares to the other siblings.[2] Rick further alleged that the will was "not executed in all respects according to law" and that the facts and circumstances suggested evidence of undue influence, fraud, and other factors affecting the document's validity.

          The circuit court conducted a bench trial on Rick's will contest. At the bench trial, the parties stipulated that Teresa had procured the will, thus shifting the burden to Teresa to establish beyond a reasonable doubt that the will was freely, willingly, voluntarily, intelligently, and knowingly executed by Grable without any undue influence on Teresa's part.

         Teresa presented testimony from Alred, Shanley, Choate, and Alicia Remick. Each of these witnesses testified about Grable's character and her mental capacity at the time the will was signed. They also testified about witnessing Grable's signature. They all saw Grable sign a document, but none of them testified that the will that was offered for probate and received into evidence was identical to the document that Grable signed, nor did any of them testify that they had read the will themselves.

         Teresa testified concerning the procurement, contents, and execution of the will. Concerning its procurement, she stated that she drafted the will at Grable's direction and that "word for word it is her words." Despite this contention that the will was "word for word what [her] mother said, " she admitted that specific paragraphs, such as those containing boilerplate language, were not the words of Grable. She conceded that her mother "did not say those contents word for word." She said the information for the will had been taken from a computer program and that not all of the language in the document was word-for-word what her mother had said.

         With respect to the contents of the will, Teresa admitted that the document contained at least three different fonts. She explained that she had no legal training, and she said that she "really [didn't] remember" everything she did in preparing the document, stating that the will was variously drafted with a laptop, a typewriter, a pencil, and a computer printer. Teresa stated that the first two pages looked like she typed them on the computer, and the last three pages had just been printed directly from the software program. She conceded that she had written the first two pages that left almost everything to her, that the first two pages that limited her siblings' inheritances did not display Grable's initials or signatures (as did the last three pages), and that those two pages were in a font that was different from the remaining pages. Teresa asserted that the handwriting and initials on the third, fourth, and fifth pages were Grable's handwriting, but she acknowledged that the notations of "N/A, " for "not applicable, " next to some of the paragraphs were in her own hand. She said that after she had filled out the "N/As, " she handed the document to her mother to sign.

         Regarding the execution of the will, Teresa said that she, Alicia Remick, Denise Choate, and Kimberly Shanley were present when Grable signed the will, and a "notary came and witnessed the signatures." After the will had been signed, Teresa put it in a manila envelope and sent it by certified mail to Grable's attorney. Teresa was unclear, however, whether it was the original of the will or a copy that she sent to the attorney, and she said she did not know what happened to the original after that day. Randy Satterfield, Grable's attorney before her death, testified that he received a will via certified mail from Teresa on September 12, 2009. He was unable to verify that the will he received in the mail was an original. He did testify that in January 2012, he went to Grable's residence to assist in the execution of a durable power of attorney. At that time, he asked her about her will, and she replied that she already had another one, which was the September 2009 will. Satterfield acknowledged that the font on pages one and two of the proffered will was different from that used on the last three and that the page numbers on all of the pages were in a different font than either of the other fonts used in the document. He also agreed that the enumerated paragraphs on the first two pages of the purported will were not initialed anywhere by Grable-including the paragraphs that substantially disinherited the other beneficiaries-although the provisions on pages three and following bore Grable's initials.

         Following Teresa's testimony, Rick moved for a "directed verdict, "[3] arguing that Teresa had proved neither that the will was not procured by undue influence nor that it was a valid instrument. As to the latter point, Rick pointed out the discrepancies in the fonts in the document as well as the inconsistencies in the witnesses' testimony, noting that while one witness said ...

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