This case is a will contest, with issues concerning undue influence and mental capacity. Mabel Hammond was seventy-five years old in the summer of 1998. On May 12, 1998, she was admitted to the hospital in El Dorado. She was seen by Dr. Barry Moore, who diagnosed her as suffering from (1) depression, (2) dementia, possibly Alzheimer’s disease, and (3) weight loss, possibly due to cancer. Dr. Moore determined by history that Mrs. Hammond had suffered several strokes in the past.
On May 18, Mrs. Hammond was admitted to Oak Budge Nursing Home in El Dorado. On June 8 she executed the will in question at the nursing home. The will left her entire estate to her husband, WA. Hammond. If her husband predeceased her, her jewelry was left to her great-niece Karen Sayers, and a great-grandniece, Sarah Sayers, with the residue of her estate to go to a great-nephew, Brian Sayers, and his wife, Rhonda Sayers, in equal shares. Approximately two weeks later W.A. Hammond died of cancer at home.
Mrs. Hammond left Oak Rddge Nursing Home on June 15. She died at home on June 25. Brian Sayers, the appellee here, filed a petition in Union County Probate Court to probate Mrs. Hammond’s will. The petition was opposed by the appellant, Michael Pyle, on his own behalf as Mrs. Hammond’s nephew and heir at law, and as guardian for his mother, Mary Pyle, the testatrix’s sister.1
Following a hearing, the probate judge issued an extensive letter opinion finding the will to be valid. On appeal, Mr. Pyle argues (1) the trial court erred in not requiring the will’s proponents to overcome the rebuttable presumption of undue influence and lack of mental capacity and (2) the trial court’s decision on these issues was clearly erroneous. We affirm.
Appellant’s first argument is:
The court charged the appellee with the duty of presenting proof of lack of undue influence and presence of testamentary capacity beyond a reasonable doubt. However, the true duty of the proponent is to overcome a presumption that the testatrix did not have testamentary capacity and was not [he] unduly influenced by their proponent of the will by presenting proof beyond a reasonable doubt.
This is a distinction without a difference. The trial court held, the appellee concedes, and we agree, that the will was procured by the beneficiary within the meaning of the law. When a beneficiary procures a will, there is a rebuttable presumption of undue influence and a lack of capacity. See Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992).
As the appellant correctly states, questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considers them together. See Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Short v. Stephenson, 238 Ark. 1048, 386 Ark. 501 (1965).
In Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (1970), the supreme court said:
We adhere to the rule that the burden of proving mental incompetency, undue influence and fraud which will defeat a will is upon the party contesting it. We hold this burden, in the sense of the ultimate risk of nonpersuasion, never shifts from the contestant. This does not, however, conflict with the rule concerning the burden of going forward with the evidence or burden of evidence.
In Rose v. Dunn, 284 Ark. 42, 679 Ark. 180 (1984), the court said that “the presumption of undue influence in the case of a beneficiary who procures the making of a will does not shift the ultimate burden of proof.” In Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999), we explained:
In the case of a beneficiary of a will who procures the making of the will, a rebuttable presumption of undue influence arises, which places on the beneficiary the burden of going forward with evidence that would permit a rational fact-finder to conclude, beyond a reasonable doubt, that the will is not the product of insufficient mental capacity or undue influence. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992); Edwards v. Vaught, 284 Ark. 262, 681 S.W.2d 322 (1984); and Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984).
In both his letter opinion and final order, the probate judge stated that the will’s proponents bore the burden of proof on both issues beyond a reasonable doubt. The trial court did not err in this regard.
Appellant’s final argument is that the evidence does not support the trial court’s finding that Mrs. Hammond had the mental capacity to execute the will and that she was not subjected to undue influences. We hold that the probate judge’s decision was not clearly erroneous.
The Standard of Review
We will reverse a probate court’s determination on the questions of mental capacity and undue influence only if they are clearly erroneous, giving due deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. See Reddoch v. Blair, 285 Ark. 446, 688 S.W.2d 286 (1985). While our review must take into consideration that the will’s proponent bore the burden of proof, or the burden of going forward with the evidence, beyond a reasonable doubt, the question on appeal is not whether we have such a doubt. The situation is analogous to an appeal in a criminal case: the burden of proof is beyond a reasonable doubt, but our standard of review is whether the jury verdict is supported by substantial evidence.
Substantive Law on Mental Capacity
Every person of sound mind and disposing memory has the untrammeled right to dispose of his or her property by will as he or she pleases. See Puryear v. Puryear, 192 Ark. 692, 94 S.W.2d 695 (1936). If the maker of a will has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such an instrument. Richard v. Smith, 235 Ark. 752, 361 Ark. 741 (1962). Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. Id. With respect to the ability to know the extent and condition of the property to be disposed and to whom it is being given, and to appreciate the desserts and relations to the testator of others against whom he discriminates or excludes from participation in his estate, it is unnecessary that he actually has this knowledge. See Huffaker v. Beers, 95 Ark. 158, 128 S.W. 1040 (1910). It is sufficient if he has the mental capacity to understand the effect of his will as executed. Puryear, supra. If a person has such mental capacity then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him. Richard, supra; McCulloch v. Campbell, 49 Ark. 367, 5 S.W. 590 (1887). A testator’s old age, physical incapacity, and partial eclipse of mind will not invalidate a will if he has the requisite testamentary capacity when the will is executed. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999). A testatrix does not lack testamentary capacity merely because old age has impaired her mental faculties. See Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997).
Undue Influence
The influence that the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of her property. Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955). With respect to a will obtained by influence, it is not unlawful for a person, by honest intercession and persuasion, to procure a will in favor of himself, or another person. McDaniel v. Crosby, 19 Ark. 533 (1858). Whether the disposition was a natural one is a relevant inquiry. See Boggianna v. Anderson, 78 Ark. 420, 94 S.W. 51 (1906). The influence of children over parents is legitimaté so long as they do not extend a positive dictation and control over the mind of the testator. Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979). Cases involving undue influence will frequently depend on the credibility of witnesses. Higgs v. Estate of Higgs, 48 Ark. App. 148, 892 S.W.2d 284 (1995).
The Facts
Karen Richards testified that she was Brian Sayers’ sister and Mabel Hammond’s great-niece. She testified that she and Brian moved in with Mrs. Hammond when she was twelve and Brian was eight or nine. She visited her in the nursing home two weeks before her death and testified that Mrs. Hammond recognized her. She also recognized Karen Richards’s son, Jace, although she had not seen him in five years.
Mrs. Richards testified that Mrs. Hammond was physically withered and had not been eating right. She testified that Mrs. Hammond’s mental capacity was about the same as it had been five years previously although she was very tired and did not speak as much. She testified that her great-aunt was closer to Brian than any of them because he had come to her house at a younger age than the rest. Mrs. Richards was a psychiatric registered nurse and testified that she thought Mrs. Hammond was of sound mind.
Edwin Gogo was a registered nurse at Oak Badge Nursing Home. He testified that she was oriented to herself and some family members. He said that Mrs. Hammond always told him that Brian Sayers was her son. He testified that Mrs. Hammond was only disoriented at nighttime and described that as the “sundown syndrome.”
Donna Rainey was the social services director at Oak Ridge Nursing Home. She testified that Mrs. Hammond was very frail and weak. She said that Mrs. Hammond’s husband had been taking care of her at home and that they were both sick. She testified that Mrs. Hammond realized they were both terminally ill and said that she did not think she could stay at home and watch him die.
Mrs. Rainey testified that Mrs. Hammond knew what she wanted and that she was “very clear in those regards.” She testified that Brian was there everyday. She said, “I think Mrs. Hammond knew her own mind as far as what she wanted.” She testified that Mrs. Hammond called Brian Sayers her son.
Diane Beeson was a LPN at Oak Ridge Nursing Home. She testified that Mrs. Hammond was alert and knew herself and family. She said that Mrs. Hammond knew she was in the hospital and nursing home, but she did not know where.
Angela Oles was a supervising registered nurse at Oak Ridge Nursing Home. She testified that Mrs. Hammond was a terminal-stage, medicare patient who had a poor appetite. She testified that at the time Mrs. Hammond signed a living will proxy, she knew what she was doing. She also testified that Mrs. Hammond always referred to Brian Sayers as her son.
Charles L. Massey was a licensed practical nurse at Oak Ridge Nursing Home. He testified that Mrs. Hammond was a thin, frail little lady. He testified that when Brian Sayers would come into her room she would smile.
Jennifer Hughes was employed at Dr. Pick Brown’s office and was asked by Lily Gregory, a co-worker, to witness Mrs. Hammond’s will. She testified that she did not get the impression that anything was being forced upon Mrs. Hammond. She testified that Brian Sayers read the will aloud to her and that she asked certain questions about how the will was drafted. Mrs. Hughes testified that she was satisfied of Mrs. Hammond’s competence when she signed and witnessed the will and that in her opinion Mrs. Hammond understood what she was signing.
Lily Ann Gregory testified that she also worked for Dr. Brown in El Dorado and that she had known Mr. and Mrs. Hammond over a period of approximately twenty years. She testified that she had heard Mrs. Hammond refer to Brian as her child and she would not be surprised that if, in the nursing home, Mrs. Hammond referred to him that way. She testified that Mrs. Hammond recognized her when she came into the room although she had not seen her for a couple of years. She testified that she had no question as to Mrs. Hammond’s competence at the moment she initialed and signed the will.
Mary Breshears testified that she had known Mabel Hammond since 1982 and that she had referred to Brian Sayers as her son. She testified that she never detected anything that concerned her about the soundness of her mind during her stay in the nursing home.
Brian Sayers testified that Mabel Hammond was his great-aunt and that he had come to live with her in the fourth grade and had lived with her ever since. He believed he had been adopted by her. He testified that she said some things that caused him to ask her if she wanted a will, and she said that she did. He testified that there was no doubt in his mind that the will was understood by her and expressed her wishes. He testified:
I am not going to say that auntie wasn’t very frail, and not all of the time was she quite as sharp as she always was. But never at one time can I remember did auntie not know what was going on, what was being talked to her, or what we were discussing.
He testified that she had no other heirs who had made contact with her in the last ten or twenty years that he could remember.
Dr. Barry Moore testified that Brian Sayers was taking care of Mrs. Hammond daily. He expressed his opinion “to a reasonable degree of medical certainty” as to whether Mrs. Hammond would have had sufficient mental capacity on the day of the execution of the will to understand without prompting the natural “recipients” of her bounty. He said that she lacked such capacity. He testified that it was his understanding that a person must be “oriented to time, place and person.”
What the nursing home personnel meant when they said Mrs. Hammond was “confused as to time and place” is clearly explained in Mr. Gogo’s testimony. He said, “If I were in front of Mrs. Hammond now and asked her the time and she said twelve noon and the time was actually 11:15 a.m. I would have entered that as confused as to exact time. If a family member had asked her if she knew where she was, and she said she is in the nursing home, I can say she is disoriented as to the exact place.”
The dissent finds the single reference to Mrs. Hammond’s “children” in the will to be quite significant. It seems reasonable to assume, however, that Mrs. Hammond believed the will referred to her stepchildren. The dissent also places great weight on the use of the word “trustee” in the will but neglects to say that the word only appears in the phrase “executor and trustee.” The probate judge did not find this language to be of any great importance, nor do we.
The testimony offered by the proponent and the other witnesses of the will is sufficient, if believed, to establish that Mrs. Hammond was competent to execute the will and that the will was not the product of undue influence. The trial court was entided to credit the testimony of these witnesses. The court’s decision is not clearly erroneous.
Affirmed.
Pittman, Hart, Bird, and Koonce, JJ., agree. Griffen, Stroud, Neal, and Crabtree, JJ., dissent.Mary Pyle did not testify at trial and there was evidence that it may have been as long as twenty years since she and Mabel Hammond had seen each other.