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 ...