In the MATTER OF the ESTATE OF Loy Gene CUNNINGHAM, Deceased Deborah Cunningham, Appellant
Connie Dillard, Appellee
FROM THE MARION COUNTY CIRCUIT COURT [NO. 45PR-16-65],
HONORABLE JOHN R. PUTMAN, JUDGE
Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, by:
Clayborne S. Stone, for appellant.
A. Gibson, Yellville, for appellee.
R. ABRAMSON, Judge
Deborah Cunningham appeals the Marion County Circuit Court
order appointing Connie Dillard as personal representative of
Loy Gene Cunninghams 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 Loys 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 as the executor and nominated Deborah
as the executor if Elizabeth declined. Deborah attached
Elizabeths declination of appointment as personal
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 Loys residence on October 14, 2012.
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 Loys 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. Cunninghams
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 Loys death.
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 Loys 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 Loys
timely appealed the circuit courts 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 Loys death. Connie responds that
subdivision (2)(A) requires the 2010 will to have only
legally existed, rather than physically existed, at the time
of Loys death.
Although we review probate proceedings de novo, we do not
reverse the circuit courts 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 ...