dissenting. I disagree with the prevailing opinion in two respects. First, I believe that the chancellor erred in shifting the burden of proof from Claude Noland to the defendants. Appellee Claude Noland brought this action seeking to set aside Wesley Noland’s trust and warranty deed. The appellants defended the action contending that the trust and warranty deed were legitimate expressions of Wesley Noland’s intent. Secondly, I do not believe that the trial court held that a joint tenant cannot convey his joint interest to a third party and by so doing dissolve the joint tenancy.
The chancellor found that Jerry Noland procured the trust agreement and warranty deed. This finding was not clearly erroneous. However, I disagree that the presumption requiring a shifting of the burden of proof was applicable to the facts of this case. The general rule is set forth in 79 Am. Jur. 2d Wills § 429, p. 579, and is expressed as follows:
Most of the authorities support the view that a presumption of undue influence arises upon a showing that one who drew the will, or was otherwise active directly in preparing it or procuring its execution, obtains under the will a substantial benefit, to which he has no natural claim, or a benefit which, in amount, is out of proportion to the amounts received by other persons having an equal claim to participate in the bounty of the testator. (Emphasis added.)
Arkansas courts have recognized this rule of law since 1858. McDaniel v. Crosby, 19 Ark. 533 (1858). In every instance, however, where the burden of proof is shifted to the procurer of the document to prove beyond a reasonable doubt that the testator had both mental capacity and freedom of will at the time of execution of the will the procurer gained a greater share of the testator’s estate by virtue of the will than the procurer would have otherwise received. Looney v. Estate of Wade, 310 Ark. 708, 809 S.W.2d 531 (1992) (procurer, unrelated to the testatrix, was owner and administrator of the residential care center where the testatrix lived); Park v. George, 282 Ark. 155, 667 S.W.2d 644 (1984) (procurers, lawyers who prepared the will, received a $7,000 fee at the time the will was signed and one of them was bequeathed $10,000 under the will); Oliver v. Griffe, 8 Ark. App. 152, 649 S.W.2d 192 (1983) (although procurer was testator’s daughter, testator had disinherited her under an earlier will); Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980) (procurer was ex-wife of testator, having divorced testator twenty years before will was procured); Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979) (procurer, testator’s second wife, was devised the testator’s entire estate to the exclusion of testator’s children); Short v. Stephenson, 238 Ark. 1048, 386 S.W.2d 501 (1965) (procurer was only a friend of the testator); Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955) (procurer was testator’s daughter-in-law); McDaniel v. Crosby, supra (procurer, an unrelated drinking buddy of testator, was sole devisee to the exclusion of the testator’s relatives).
I submit that this factual element is a prerequisite to the rule requiring a shifting of the burden of proof.1 I further submit that this circumstance is lacking in the case now before us.
The only significant asset owned by Wesley Noland that is now in dispute is his home, and an approximately 82-acre farm where it sits. Long before execution of the trust agreement and deed involved in this appeal, Wesley Noland and his wife conveyed tide to their farm into a joint tenancy with their sons, Claude and Jerry. Consequendy, at the time the subject documents were executed, Wesley’s farm was owned by three joint tenants, Wesley, Claude and Jerry. If Jerry had not procured the execution of the trust agreement and warranty deed, he likely would have been eventually the sole owner of the home and farm inasmuch as he was the youngest of the joint tenants. However, by virtue of the trust agreement and warranty deed signed by Wesley Noland that Jerry procured, and the warranty deed Jerry also executed conveying his interest in the joint tenancy into the trust, Jerry’s interest in Wesley’s home and farm was reduced to a two-ninths undivided fractional remainder interest in the house and farm. This fractional interest was subject to Wesley’s right to receive support from the trust during his lifetime and Claude’s right to reside in the house and use the barn and corral for his lifetime. Rather than gaining or benefiting from this transaction, Jerry actually gave up a very significant share of his father’s home and farm that he would have otherwise received. Consequently, the presumption requiring a shifting of the burden of proof to the procurer of the documents was not applicable and the chancellor erred in holding to the contrary.
With regard to the issue of whether a joint tenant may legally convey his interest and thus dissolve a joint tenancy, the chancellor expressed doubt as to whether a joint tenant could do so, however the chancellor clearly stated that “I do not reach that issue.” Conse-quendy, I do not think that this issue is properly before us.
I would reverse and remand this case with directions that the chancellor decide the case with the proper burden of proof being on appellee, who sought to set aside the trust agreement and warranty deed.
Mayfield and Stroud, JJ., join in this opinion.
A similar contention was asserted by a testator’s daughter in Oliver v. Griffe, supra. However, in that case she contended that the presumption should only arise if the procurer of the will received more benefit under it than she would have received had the testator died intestate. We pointed out that her argument overlooked the fact that the testator had disinherited this daughter under an earlier will. Consequendy, she received a significant benefit under the procured will that she would not have otherwise received.