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Moore v. Sullivan

Court of Appeals of Arkansas, Division II

February 13, 2019

CAROLYN MOORE APPELLANT
v.
JEWELL SULLIVAN, EXECUTRIX OF THE ESTATE OF CHARLES SULLIVAN; CHARLENE SWAIMS; RHONDA CLEGG; AND TONI HYATT APPELLEES

          APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23PR-13-281] HONORABLE H.G. FOSTER, JUDGE

          Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellant.

          Wilson & Haubert, PLLC, by: Stefan K. McBride, for appellees.

          N. MARK KLAPPENBACH, JUDGE.

         Carolyn Moore and Randall Sullivan filed a will contest alleging that their father, Charles Sullivan, lacked testamentary capacity to execute his will dated March 24, 2009. The Faulkner County Circuit Court found that the will was valid and denied the petition. Moore now appeals, and we affirm.

         Charles executed three wills in his lifetime on June 24, 1999; March 24, 2009; and January 6, 2010. Charles died in February 2010 at the age of ninety-four. In February 2013, the Faulkner County Circuit Court entered an order granting the complaint of Carolyn and Randall to set aside a deed executed on the same date as Charles's 2010 will on the basis of Charles's mental incapacity.[1] In June 2013, Charles's wife Jewell filed a petition to have Charles's 2009 will admitted to probate. Carolyn and Randall filed their contest to the 2009 will in July 2013, alleging that Charles lacked testamentary capacity and was subjected to undue influence. Randall died in September 2013.

         At the 2016 trial in this matter, the evidence established that Charles's 1999 will divided his real property between his three children as follows: approximately sixty acres to Randall, eighty acres to Carolyn, and eighty-seven acres to daughter Charlene Swaims. The will also bequeathed Charles's farm tools, implements, and equipment to Randall. The 2009 will changed Randall's distribution to a life estate with the remainder interest going to Randall's daughter. Carolyn's interest remained the same, except the north ten acres of her parcel were distributed to Charlene. Charlene was also bequeathed the farm tools, implements, and equipment.

         Carolyn testified that in 2006 or 2007 she began noticing that Charles was having problems concentrating and remembering what he wanted to say. She said that by 2009, Charles was confused, could not understand what people said to him, and could not speak well. In addition to losing his hearing and vision, she said that he had trouble remembering things and would often cry. Carolyn said that Charles did not recognize her or Randall when they visited him in the hospital in September 2009. Carolyn testified that she got along great with her father, but she was not allowed in his home after September 2009 because Jewell refused to let her see him.

         Carolyn testified that Charles's signature on his 2009 will looked like someone was helping him sign his name. She said that in 2007 or 2008, she asked her father to let her see what he intended each child to inherit, but Jewell would not show it to her. She believed this was related to her inheritance being reduced by ten acres. Carolyn said that she asked her father's lawyer, Bill Adkisson, to see the will in September 2009, and Adkisson told her that the will was not what Charles wanted but he could not do anything about it.

         Five of Charles's friends and neighbors testified that they had each had an instance in which Charles did not recognize them near the end of his life despite having known them for years. According to the witnesses' testimony, these instances occurred up to two years before Charles's death. Randall's former girlfriend also testified that there were times Charles did not know who she was.

         Jewell testified that she married Charles in 1974, and they had no children together. She was ninety years old at the time of trial. She claimed that Charles was in good shape cognitively in 2009, that he had no problems with confusion, and that there was never a time before March 2009 when he did not know the names of his children or what he owned. She said that because he was hard of hearing and had bad eyesight, he may not have recognized or heard people from a distance. She said that his hearing also resulted in him hardly answering or changing the subject when people spoke to him. However, she maintained that he still had a very clear mind and even worked cutting and baling hay in the summer of 2009.

         Jewell said that three or four years before his death, Charles told Carolyn and Randall that they would have to start paying the taxes for the property they lived on and would later inherit because he needed money to supplement his Social Security since he could not raise as many cattle as he used to. She said that Carolyn and Randall complained about having to pay the taxes, and Carolyn was also mad that Charles told her she had to buy the feed for her cow. Jewell said that on one occasion when Carolyn was complaining about taxes and the feed, she screamed at Jewell and called her a "bitch." Jewell said that when she told Charles what happened, he said that Carolyn was not welcome in the house until she apologized to Jewell. Jewell said that this occurred around September 2009 and resulted in Charles, not her, keeping Carolyn away because she refused to apologize. Jewell said that prior to this time, Carolyn would only come by once a month, at best, and never stayed long. Jewell explained that Charles was unhappy with Randall for not helping him on the farm like he should and for selling some equipment that Charles did not want sold. She said that this prompted Charles to change his will to provide that Randall's daughter would get his part after Randall died and no one else could take it. Jewell said that Charles wanted the ten-acre portion changed from Carolyn to Charlene because there was a pond on that section and Charlene would be the one with cattle.

         Jewell testified that Charles asked her to make an appointment with Adkisson to get his will changed. She said that Charles told Adkisson what he wanted, and Adkisson had her read the whole will back to Charles. Adkisson then asked Charles if that was what he wanted, and Charles said it was. Jewell said that Charles was clear minded and knew what he was doing with regard to the will.

         On cross-examination, Jewell was questioned about symptoms she reported that Charles had experienced to a doctor at St. Vincent in March 2009. She said that she did not remember reporting what was put in the medical notes from a March 20 doctor's visit, including references to impaired decision-making and changes in personality. Jewell said that she talked to one doctor about Charles being paranoid and having hallucinations, but the doctor said it was caused by the medication Charles was taking and it cleared up after the ...


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