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Wiseman v. Keeter

Court of Appeals of Arkansas, Division II

May 9, 2018



          Benjamin A. Gibson, for appellant.

          Jeremy B. Lowrey and Johnny L. Nichols, for appellees.


         Appellant Bradley Wiseman (Brad) appeals from an order of the Marion County Circuit Court declining to admit a June 3, 2015 will to probate. The court found that Brad failed to rebut the presumption that Patsy Malenke was under undue influence at the time she signed the will in question. Brad argues that the court erred by: (1) shifting the burden of proof and employing the wrong standard and (2) finding that he did not meet the burden. We affirm.[1]

         Patsy died on June 28, 2015, at the age of 75. At the time of her death, she was survived by three children (Michael Wiseman, Teresa Wiseman Keeter, and Brad Wiseman) and five stepchildren (Brian[2] Malenke, Teri Gisi, Robin Hunsperger, Jacob Schmitt, and Joe Schmitt). Her real and personal property was valued at $152, 000, [3]according to the petition to probate Patsy's will filed by Brad on October 22, 2015. The will in question was dated June 3, 2015, and left most of Patsy's estate to Brad. The June 3, 2015 will revoked an earlier will dated July 27, 2010, which left fifty percent of Patsy's estate to be equally divided by her children and the remaining fifty percent to be equally divided by her stepchildren. On November 6, 2015, Patsy's remaining survivors filed a will contest. They alleged that the 2015 will was invalid because it was executed under undue influence or duress and because Patsy was incompetent at the time of the will's execution.

         A hearing took place on November 16, 2016. Dr. Gary Linker, a psychiatrist, testified that Patsy was admitted into North Arkansas Medical Center on June 15, 2015, based on a referral from Dr. Richard Chitsey due to hallucination and paranoia. He stated that he met Patsy on June 16 and that although she knew her name, she was unable to provide other basic details regarding her life due to her dementia. According to him, Patsy was very confused, disorganized, and scared throughout her stay at the hospital. He testified that Patsy was administered the St. Louis University Memory Scoring test (SLUMS test), which only required basic information, and that she scored 1 out of 30, which indicated advanced dementia syndrome. He stated that there was also suspicion that Patsy had a stroke. He said that the family history he obtained showed that Patsy's dementia had been progressing over time, but had sped up rapidly. He testified that she was discharged on June 24, 2015, with a very poor prognosis.[4] He opined that at the time of Patsy's discharge, her brain was in "failure mode." He further testified:

I cannot say whether or not she had the capacity to sign a will on June 3rd, as people can have lucid intervals and I had not treated her prior to June 16th. I can say on June 16th when I saw her first, she did not have the capacity to do anything complex. Based on her condition when I first saw her, that perhaps a fall or stroke could have caused her to deteriorate quickly enough to have been fine on June 3rd and then in the condition I saw her in on June 16th. It should be noted that she had an urinary tract infection upon being admitted on June 16th, and any sort of infection coupled with dementia can contribute to dementia and delirium. Also changes in environment can make you more susceptible to delirium. What made me think the signs of dementia were not based on the infection was the severity of the symptoms at the time I saw her.
I could say she was possibly impaired on June 3rd, but I could not say she was totally impaired. People with advance[d] dementia and severely advanced dementia do have the ability to make decisions. Dr. [Geoffrey] Dunaway's prior diagnosis of hallucinations and delusional thoughts would not change my opinion about her status on June 3rd. I worked with a judge who had a stroke and had very similar problems as [Patsy], but then he returned to the bench. Dementia and its symptoms can be very complex. The infection or a fall or something else could render her temporarily incapacitated and then she could be fine again. There is no way to say how she was on a day in which I did not see her, again when I saw her on the 24th, there was no way she could make a complex decision. Her SLUMS exam from February 24, 2014, would not change that opinion, because there are many factors that could have been in play that day. She could have times of being fine and periods of delirium and that is the bottom line. Even if she would have scored a 30 on the SLUMS exam, she could have still been incapable of complex decision close thereafter. In general, as the dementia disease progresses, dependency increases. Removal from familiar environments can cause dependence and confusion. Restriction from family and friends can cause increased dependency. The medications used to treat symptoms of dementia could diminish one[']s mental capacity. Her discharge summary referred to her dementia as chronic, which means had lasted longer than six months.

         On cross-examination, Dr. Linker stated that he could not state whether or not Patsy was under undue influence at the time she executed the will in question. He stated that Dr. Chitsey's notes indicated that Patsy had been hallucinating and delusional and that was why she was referred to Dr. Linker's facility. He testified that he had never had a situation where Dr. Chitsey "would have seen a patient whom needed to be referred to [Dr. Linker], but he failed to do so, based on their mental impairment." He admitted that Dr. Chitsey's notes from June 3, 2015, indicated that Patsy was seen by him and was "having a good day." He testified that he learned on the day of the hearing that Dr. Dunaway had diagnosed Patsy with mild vascular dementia. He said that Patsy's condition did not improve while she was hospitalized. He opined that moving a patient in need of help could lead to failure due to the change. He stated that Patsy was given medication to sleep because her lack of sleep was an ongoing issue for her. He indicated that sleep was very important to someone with dementia. Dr. Linker stated that Patsy was in his facility for nine days, but he only spoke with Brad and Brad's wife, Kim, during that time.

         On redirect, Dr. Linker stated that a period of hallucinations from February 2014 to May 2015 would be a potential symptom of dementia. However, he stated that cutting up clothing with scissors would be more of a disorganized behavior due to being overwhelmed and confused. He said that the disorganized behavior could wax and wane depending on how well the person slept. He also admitted that disorganized behavior could be a symptom of dementia. He testified that Dr. Chitsey's notes from June 13, 2015, indicated that Patsy's altered mental state had been going on for quite a while and that he took that to mean more than two weeks. He stated, "I have seen people who hallucinate robustly but they have an amazing ability to recall how much money they have and the names of their kids, etc."

         On re-cross, Dr. Linker stated that even a lay person would have been able to recognize Patsy's poor mental condition on June 15, 2015.

         Whitney Wiseman, Patsy's granddaughter, testified that she began living with Patsy in 2008 after Patsy's second husband passed away. She stated that Patsy lived in the home until May 2015, when she moved in with Brad. She testified that no one discussed Patsy's moving out with either her, her father, or her aunt. She said that Patsy had a mini stroke in February 2014 that changed her. She stated that after the stroke, it was decided that Patsy needed 24-hour care. Whitney said that she took care of Patsy at night and that Atlas, a home-health agency, took care of Patsy during the day. She stated that it was Brad's responsibility to take Patsy to her doctors' appointments but he did not care for Patsy after the stroke. She testified that as a result of the stroke, Patsy would hallucinate and see things, pretend she was sewing, get agitated, forget how to smoke her cigarettes, and get up at night. She also stated that Patsy thought she was still married to her first husband, whom she divorced in the 1990s. Whitney testified that most of Patsy's days were bad after the stroke and that Patsy sometimes did not remember her children's and grandchildren's names. She said Brad picked up Patsy's prescriptions, and she gave them to Patsy. She stated that she considered herself Patsy's primary caregiver during the time she lived with Patsy. She indicated that Patsy had fallen a couple of times, which led to her having to get a walker. She further stated that there "was a clear difference in [Patsy] mentally and emotionally after she had a stroke."

         On cross-examination, Whitney stated that she lived in Patsy's house until after Patsy died. She said that she and Brad did not talk because they did not get along well. She admitted that she had no idea if Brad visited Patsy during the day because she worked, and would only know that information if Patsy told her. She said that she took care of Patsy's bills because Patsy could not "fill it out." She stated that her older sister would help Patsy with her bank statement so that she knew how much money she had. She said that Patsy informed her on May 25, 2015, that she was moving in with Brad; however, she stated that she believed that it was Brad's decision because Patsy indicated that she wanted to live in her house. She testified that Patsy did not sleep well and her days were bad after the stroke. Whitney stated that she never visited Patsy after Patsy moved in with Brad because she "never got a call or felt welcome." However, she acknowledged seeing Patsy once when Brad brought her back to get some of her things out of the house. She said that no one knew anything about Patsy's health until she went to the nursing home.

         Teresa Keeter testified that she witnessed Patsy's behaviors as described by Dr. Linker and Whitney. She stated that she had regular contact with Patsy before Patsy moved in with Brad. She admitted that she did not have much contact with Patsy prior to the stroke in 2014. She said that after Patsy's stroke, she, Brad, and Michael put together a care plan to ensure that Patsy had someone with her 24 hours a day. She testified that Whitney and Lacey lived with Patsy so they could be with her at night. She indicated that she went to Patsy's on the weekends. She stated that Kim was supposed to be with Patsy during the day, but she only did so for about two weeks, and then hired Atlas to stay with Patsy during the day, which was paid for out of Patsy's account. She said that Brad did not participate in Patsy's daily caregiving but that he would visit Patsy and take her to the doctor. Teresa stated that Patsy stayed at her home one weekend and was delusional. She indicated that the delusional behavior was common. She testified that she and Michael were involved in Patsy's care from the time she came home after the stroke in February 2014 until she moved in with Brad. She said that Brad never informed her that he was moving Patsy in with him and that she had to hear it from Michael. She also stated that Brad did not tell her when Patsy was admitted to the hospital because Brad said that Patsy did not want anyone to know because they had not called or visited since she moved in with Brad. However, she stated that Brad came by her house and told her the plan the day before Patsy was moved to Creekside. She said that she saw Patsy at Creekside for a couple of days before she died, but that Patsy could not communicate. She testified that she did not call Patsy while she was at Brad's because she knew that she would not hear from Patsy. Teresa said that she would have visited Patsy in the hospital had she known Patsy was there. She stated that Brad informed her that he had power of attorney over Patsy right before Patsy died. She said that Brad had taken Patsy to make funeral arrangements in 2014.

         On cross-examination, Teresa stated that the last time she took Patsy to the doctor was in January 2015 for a neck surgery. She said that she did not know where Brad lived, because

after mom and dad divorced, it split the family and Brad didn't have anything to do with us. My mom got mad at me for not disowning my dad after their divorce [so] she had nothing to do with me or my kids or any of the rest of the family until she married Papa Dale. She had called and invited me to the wedding sometime around 2000. I don't recall how long I went without talking to my mom, probably at least ten years. She was married to Papa Dale until he died maybe seven or eight years. I really can't say if she and Michael had the same falling out after the divorce, I think they had more contact than I did. Brad was her go-to guy. They never had a falling out.

         She admitted that she borrowed $1, 700 from Patsy that she did not repay it before Patsy died. She said that she had Brad's phone number, but that she never called after Patsy moved in ...

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