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 ...