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In re Estate of Bond

Court of Appeals of Arkansas

April 24, 2019

IN THE MATTER OF THE ESTATE OF ELZA CLIFTON BOND, JR., DECEASED
v.
BARBARA GIBSON APPELLEE CHARLOTTE MARCUM; LUELLEN HOLMES; ROBERT W. SNOW, JR.; AND VICKI GOTTSPONER APPELLANTS

          APPEAL FROM THE DREW COUNTY CIRCUIT COURT [NO. 22PR-14-31] HONORABLE KENNY JOHNSON, JUDGE

          James R. Baxter, for appellants.

          Haley, Claycomb & Roper PLLC, by: Kaylyn Turner and Richard L. Roper, for appellee.

          MIKE MURPHY, JUDGE

         This appeal comes from a decision of the probate division of the Drew County Circuit Court admitting a holographic will of Judge Elza Clifton Bond, Jr., to probate. The appellants are Judge Bond's maternal first cousins, and the appellee, Barbara Gibson, was nominated as personal representative of Judge Bond's estate in the holographic will.

         Judge Bond passed away on February 17, 2014. He was a well-respected attorney and judge and practiced law for over forty-five years. He did not have any children or siblings and was preceded in death by his parents and his wife. Judge Bond was survived by eight first cousins-four maternal and four paternal. The will at issue provides an inheritance only to the paternal cousins; thus, if it is upheld, only the paternal cousins will inherit. If it is not, all eight cousins will take equally.

         On appeal, the appellants argue that it was erroneous for the circuit court to admit the will to probate. They further argue that it was erroneous for the court to place the burden of proving any incapacity on them. For the reasons discussed below, we affirm.

         Judge Bond died on February 17, 2014. While cleaning out Judge Bond's house, Frank Gibson, one of Judge Bond's paternal cousins, found in a satchel a handwritten document that appeared to be a will. He testified that there were other items in the satchel, the rest of which related to the death and funeral of Judge Bond's wife. At the trial, several witnesses were asked about the handwriting on the document. Everyone who was asked testified that it was written entirely in Judge Bond's handwriting. Judge Bond's signature appears at the end, but it is not dated. At the end of the document, there is a handwritten attestation clause with blanks in it. Those blanks were never filled in.

         At trial, both parties presented several witnesses, including experts, to testify regarding the competency of Judge Bond. The lay witnesses primarily testified concerning their personal experience with Judge Bond over many years and, in particular, their time with him following the death of his wife, Marjorie Mae, on April 9, 2011. The testimony offered by both parties indicated that Judge Bond was mentally competent and in fairly good health through most of 2013. Johnathan Davis, a local forester, managed a timber cutting and sale for Judge Bond during the first half of 2013 and indicated that Judge Bond was able to understand and handle the business transaction capably. There was some testimony offered that toward the end of 2013, Judge Bond occasionally exhibited odd behavior and hallucinations. On December 18, 2013, Judge Bond was admitted to a hospital for an infection. From there he was transferred to three other facilities, and he passed away at the third facility. He did not return home after December 18.

         The circuit court admitted the will to probate. It found that three credible, disinterested witnesses established that the handwriting and signature belonged to Judge Bond and was signed in conformity with Arkansas Code Annotated section 28-25-104 (Repl. 2012), our holographic-will statute. The circuit court further found that once admitted, it was the appellants' burden, as the ones contesting the will, to establish that the will was executed without testamentary capacity. The appellants now timely appeal.

         Probate cases are reviewed de novo; however, we will not reverse the circuit court's findings of fact unless they are clearly erroneous. Minton v. Minton, 2010 Ark.App. 310, at 4, 374 S.W.3d 818, 820. A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed. Id. In our review, we defer to the circuit court's evaluation of the credibility of the witnesses. Id.

Arkansas Code Annotated section 28-25-104 provides that
[w]hen the entire body of the will and the signature shall be written in the proper handwriting of the testator, the will may be established by the evidence of at least three (3) credible disinterested witnesses to the handwriting and signature of the testator, notwithstanding there may be no attesting witnesses to the will.

         The appellants do not contend that the document admitted to probate does not meet those requirements. Instead, they first argue that Judge Bond lacked testamentary intent when creating it because it was undated and contained blanks in the attestation clause. They cite Peevy v. Ritcheson, 261 Ark. 841, 552 S.W.2d 218 (1977), for the proposition that a missing date demonstrates missing testamentary intent, [1] and they argue that several other states that have addressed the issue of blanks in attestation clauses equally demonstrates missing ...


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