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In re Estate of Cunningham

Court of Appeals of Arkansas, Division I

March 27, 2019

IN THE MATTER OF THE ESTATE OF LOY GENE CUNNINGHAM, DECEASED
v.
CONNIE DILLARD APPELLEE DEBORAH CUNNINGHAM APPELLANT

          APPEAL FROM THE MARION COUNTY CIRCUIT COURT [NO. 45PR-16-65] HONORABLE JOHN R. PUTMAN, JUDGE

          Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Clayborne S. Stone, for appellant.

          Benjamin A. Gibson, for appellee.

          RAYMOND R. ABRAMSON, JUDGE

         Deborah Cunningham appeals the Marion County Circuit Court order appointing Connie Dillard as personal representative of Loy Gene Cunningham's estate. On appeal, Deborah argues that the circuit court misconstrued Arkansas Code Annotated section 28-40-302(2)(A) (Repl. 2012). We affirm.

         Deborah is Loy's daughter. Loy died on July 14, 2016, and Connie lived with Loy during the last years of his life. On August 17, 2016, Deborah filed a petition for probate of will and appointment of personal representative. She attached a will executed by Loy in 2006 devising his property to his trust (the 2006 will). The 2006 will named Elizabeth Cunningham[1] as the executor and nominated Deborah as the executor if Elizabeth declined. Deborah attached Elizabeth's declination of appointment as personal representative.

         On August 31, 2016, Connie filed a petition to prove a lost will. She alleged that Loy had executed a second will in 2010 (the 2010 will) and that the 2010 will nominated her as the executor of his estate. She further alleged that the 2010 will revoked the 2006 will but that the 2010 will could not be located and that it had been lost or accidentally destroyed by a fire at Loy's residence on October 14, 2012.

         The court held a bench trial; however, after the trial, the court discovered that it had a conflict of interest, and the case was reassigned. In lieu of holding a second trial, the parties stipulated to the following facts. In 2006, Loy executed a will devising his property to his trust. In 2010, Loy executed a second will devising his property to Connie. Loy kept the 2010 will in his home; however, on October 14, 2012, an accidental fire destroyed Loy's home and all his possessions, including the 2010 will. After the fire, Loy did not execute a subsequent will, and he died on July 14, 2016. The parties specifically stipulated that "the original 2010 will did not physically exist at the time of death, or if it did, there was no way to know where it was and is presumed lost in the fire at the time of Mr. Cunningham's death."

         The parties filed posttrial briefs, and they submitted to the court that the only issue was whether Arkansas Code Annotated section 28-40-302(2)(A) requires the 2010 will to have physically existed at the time of Loy's death.

         On June 22, 2018, the circuit court entered an order finding that section 28-40-302(2)(A) does not require the 2010 will to have physically existed at the time of Loy's death. The court noted that "[t]o hold otherwise would mean that a validly executed will that was not revoked by the testator could never be enforced, if it was merely lost or accidentally destroyed during his lifetime." Accordingly, the court admitted the 2010 will to probate and appointed Connie as the personal representative of Loy's estate.

         Deborah timely appealed the circuit court's order to this court. On appeal, Deborah argues that the circuit court misconstrued section 28-40-302(2)(A). Specifically, she argues that subdivision (2)(A) requires the 2010 will to have physically existed at the time of Loy's death. Connie responds that subdivision (2)(A) requires the 2010 will to have only legally existed, rather than physically existed, at the time of Loy's death.

         Although we review probate proceedings de novo, we do not reverse the circuit court's findings unless they are clearly erroneous. Burns v. Estate of Cole, 364 Ark. 280, 219 S.W.3d 134 (2005). We review issues of statutory interpretation de novo and are not bound by the circuit court's interpretation of a statute. Id.

         Arkansas Code Annotated section 28-40-302, which deals with proving a lost or ...


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