FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23PR-13-281]
HONORABLE H.G. FOSTER, JUDGE
& Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha
C. Taylor, for appellant.
& Haubert, PLLC, by: Stefan K. McBride, for appellees.
MARK KLAPPENBACH, JUDGE.
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.
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. 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.
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.
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.
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
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.
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.
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.
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.
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