dissenting. Today the majority affirms a decision that the chief beneficiary of a will who procured it rebutted the longstanding legal presumption of undue influence by proving beyond a reasonable .doubt that the testator possessed the requisite testamentary capacity when she signed the will and that she was not acting under undue influence in the face of a probate court decision that disregarded undue influence altogether. Although the testator was childless, the majority affirms a decision that there is no reasonable doubt about her testamentary capacity after she signed a will calling for her husband to make “adequate provision for my children after my death.” The will refers six times to “my . . . Trustee;” however, the proponent presented no proof that a trust ever existed or that the testator ever contemplated creating a trust. The record shows that the testator was survived by a sister; yet, the same testimony from the proponent that the majority relies upon to affirm shows that the testator thought her stepchildren would inherit her estate if she died without a will and that she never acted as if she knew who were her natural heirs. I firmly believe that the chancellor erred when he found that appellee, the proponent of the will, proved beyond a reasonable doubt that the testator had the mental capacity to execute a will and that she was not acting under undue influence. I respectfully dissent.
Background Facts and Burden of Proof
In the spring of 1998, seventy-five-year-old Mabel Hammond and her husband, W. A. Hammond, were in failing health. W. A. Hammond was dying of cancer. He had been caring for his wife and managing their household affairs for several years because Mabel Hammond had not been able to care for herself. She suffered from senile dementia, possible Alzheimer’s disease, severe weight loss, depression, a bad cough (later diagnosed as related to her previously undiagnosed condition of lung cancer which had metastasized to her fiver and was terminal), and disorientation. On May 12, 1998, WA. Hammond arranged for Mabel Hammond to be admitted to Union Medical Center in El Dorado, Arkansas, where she was treated by Dr. Barry L. Moore from May 12 to May 18, 1998. After she was discharged from the hospital, Mabel Hammond was admitted to Oak Badge Nursing Home where she resided until discharged to her home on June 15, 1998.
On June 8, 1998, Mabel Hammond signed a will that left the majority of her estate to her great-nephew, appellee Brian Sayers, if her husband did not survive her. Her husband died the following day (June 9, 1998). Mabel Hammond died on June 25, 1998, (two weeks later). She never had children, but was survived by a sister, Mary Pyle. Michael Pyle, appellant, is the guardian of the personal estate of Mary Pyle, his mother. After appellee presented the purported will to the Union County Probate Court on July 1, 1998, appellant objected to the will on three grounds: (1) that the will was procured by appellee; (2) or that the will was the result of undue influence; and (3) that Mabel Hammond lacked the testamentary capacity to execute a will.
The probate court conducted a trial on May 5 and 6, 1999, concerning the will contest. On June 1, 1999, the probate judge entered an order admitting the will to probate. The second paragraph of that order reads:
This is a will contest, specifically whether the testatrix Mabel Hammond had the requisite mental capacity and was not acting under undue influence on June 8, 1998 when she executed a will. The issue here is mental capacity as the facts do not indicate any undue influence. (Emphasis added.)
The same opinion also contained the following statement:
The evidence is not controverted that Brian Sayers procured the will and benefits from its provisions. The law in Arkansas is clear that when a will is valid on its face an opponent of the will must prove by a preponderance of the evidence that the testator either lacked the mental capacity to execute a will or did so under undue influence. However, if the proponent of the will procured the will and benefits from the will then the burden of proving the will is on the proponent. The burden of proof is under those circumstances beyond a reasonable doubt.
It has long been the law in Arkansas that a party challenging the validity of a will must typically prove by a preponderance of the evidence that the testator lacked the requisite mental capacity or that the testator was the victim of undue influence when the will was executed. See Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963); Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955). See also Oliver v. Griffe, 8 Ark. App. 152, 649 S.W.2d 192, (1983). However, it is equally settled that when the person benefitting from the will also engages in drafting or procuring the will, a rebuttable presumption of undue influence arises and creates a burden for the proponent of the will to prove beyond a reasonable doubt that the testator had both the testamentary capacity as well as the freedom from undue influence to execute a valid will. See Smith v. Welch, et al., 268 Ark. 510, 597 S.W.2d 593 (1980); Short v. Stephenson, 238 Ark. 1048, 386 S.W.2d 501 (1965); Orr v. Love, supra,; McDaniel v. Crosby, 19 Ark. 533 (1858). See also Oliver v. Griffe, supra. Our supreme court has often stated that the 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, for in one case where the mind of the testator is strong and alert the facts constituting undue influence would be required to be felt stronger than in another case where the mind of the testator was impaired either by some inherent defect or by the consequences of disease or advancing age. Short v. Stephenson, supra.
It is true that “every person of sound mind .and disposing memory has the untrammeled right to dispose of [her] property by will as [she] pleases.” See Puryear v. Puryear, 192 Ark. 692, 694 S.W.2d 695, 696 (1936). This means that if the maker of a will has sufficient mental capacity to retain in her memory, without prompting, the extent and condition of her property and to comprehend how she is disposing of it, to whom, and upon what consideration, then she possesses sufficient mental capacity to execute the will. Richard v. Smith, 235 Ark. 752, 361 S.W.2d 741 (1962). And our supreme court has frequently observed that the relevant inquiry is not the mental capacity of the testator before or after a challenged will is signed, but rather the level of capacity at the time the will was signed. See Noland v. Noland, 330 Ark. 660, 956 S.W. 2d 173 (1997); Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992); Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (1970).
As for undue influence, our supreme court stated in On v. Love, supra, as follows:
The influence which 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 his property.
225 Ark at 510, 283 S.W.2d at 670. See also In re Estate of Davidson, 310 Ark. 639, 839 S.W.2d 214 (1992).
Although the majority cites the supreme court’s decision in Noland, supra, along with other decisions holding that one who procures a will has the burden of proving beyond a reasonable doubt that the testator executed the will while possessed of requisite mental capacity and without undue influence, it ignores clear wording in both the Noland majority and dissenting opinions that the burden of proof shifts to the procurer to overcome the rebuttable presumption of undue influence that arises whenever one benefits from the procurement. Noland involved a challenge to a chancellor’s decision that the appellants procured a testamentary trust and related warranty deed from Wesley E. Noland, deceased, and failed to prove beyond a reasonable doubt that Noland possessed the requisite mental capacity and acted without undue influence when he created the Wesley E. Noland Irrevocable Trust and conveyed his one-third interest in a family farm to it. Justice Brown, writing for the majority in Noland, stated:
Because we reverse this case on the basis of Wesley Noland’s mental capacity and free agency, we need not address the issue of whether the burden of proof was improperly shifted to the appellants. We assume for purposes of this analysis, as the trial court found, that at least one of the appellants, Jerry Noland, procured the Wesley E. Noland Trust and that the appellants all benefitted from this procurement. With this assumption, a presumption that the trust was the result of undue influence arises under our caselaw and the burden of proof then shifts to the proponents of the trust to prove beyond a reasonable doubt that Wesley Noland had both the mental capacity and freedom of will to render the trust legally valid.
330 Ark. at 664, 956 S.W.2d at 175 (citations omitted) (emphasis added). After analyzing the proof on the issue of mental capacity, Justice Brown’s opinion in Nolandintioduced the undue influence analysis with the following statement: “We next turn to the issue of whether the appellants met their burden of proof concerning Wesley Noland’s free agency. . . (Emphasis added.)
Justice Imber, writing for the three dissenting justices in Noland, introduced her opinion as follows:
While the majority does not decide whether the trial court correctly shifted the burden to the trust’s proponent, it nonetheless concludes that if the burden of proof did shift, the trial court was clearly erroneous in finding that the proponent failed to meet his burden to prove Wesley Noland’s mental capacity beyond a reasonable doubt. . . .
Assuming for purposes of capacity analysis, as does the majority, that Jerry Noland procured and benefitted from the 1991 trust instrument, the burden shifted to him, to prove beyond a reasonable doubt that Wesley Noland possessed the requisite testamentary capacity. This shifting burden marks a significant departure from what is required from a proponent in a “typical” will-contest case. . . .
330 Ark. at 673, 956 S.W.2d at 180, (Imber, J., dissenting) (emphasis added).
Noland was not the first time our supreme court declared that the burden of proof shifts to the proponent of a procured will to rebut the presumption of undue influence by proof beyond a reasonable doubt that the testator possessed the requisite mental capacity to make a will and was free from undue influence. In Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979), the court held that a proponent of a will who is a beneficiary and who drafted the will or caused it to be drafted must prove beyond a reasonable doubt that it was not the result of undue influence and that the testator had the mental capacity to make it. Similarly, in Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980), the court again held that when a beneficiary procures the making of a will, he bears the burden of showing beyond a reasonable doubt that the testator had both mental capacity and such freedom of will and actions as are required to render the will legally valid. See also Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992). Given the consistent and plain meaning of these supreme court decisions, the majority is mistaken in concluding that the burden of proof did not shift to the appellee regarding the testator’s mental capacity and freedom from undue influence.
The probate court correctly observed that the uncontroverted proof is that Brian Sayers procured Mabel Hammond’s will and benefitted from its provisions. Specifically, the will bequeathed Hammond’s estate to her husband if he survived her, and provided that if *WA. Hammond predeceased her, then all the estate was bequeathed to Brian Sayers and his wife, Rhonda Sayers, except for jewelry specifically bequeathed to Sarah Sayers (the daughter of Brian Sayers), and Karen Sayers (his older sister).
The probate court recognized that appellee, as proponent of the will under which he was a clear beneficiary, had the burden of proving that Mabel Hammond had the mental capacity to execute the will and that she was not acting under undue influence. The idea that the burden of proof does not shift in the case of a procured bequest makes no logical sense when one considers the quantum of proof required to overcome the rebuttable presumption that arises in will contests. How could a challenger of a procured will ever prove by a preponderance of the evidence that the will resulted from undue influence when the proponent and procurer of the will has established by proof beyond a reasonable doubt that no undue influence was exercised and that the testator signed the will while possessed of the requisite mental capacity?
Undue Influence
But the probate court erred when it analyzed the will contest as only involving mental capacity because “the facts do not indicate any undue influence.” Undue influence was presumed under longstanding Arkansas caselaw. It is undisputed that Brian Sayers procured the will and benefitted from it. He selected a lawyer (John D. Lightfoot of El Dorado) to prepare the will. Sayers met with Lightfoot privately and dictated the provisions of the will that disinherited Hammond’s sister, called for contingent bequests to Hammond’s nonexistent children, referred to a Trustee of a nonexistent trust, and provided for Sayers, his wife, daughter, and sister to be the beneficiaries of Hammond’s estate in the event that Hammond’s husband predeceased her.
Lightfoot never interviewed Mabel Hammond, never prepared a draft for her review, never discussed the drafted will with her to determine whether she understood it or had questions about it, and never had any other contact with her about the will Sayers directed him to prepare. Instead, Lightfoot prepared the will and delivered it to Sayers. Sayers obtained the witnesses to the will, presented the will to Hammond, and directed the will execution process. He also directed Lightfoot to prepare a power of attorney and living will.
The record simply does not contain proof beyond a reasonable doubt that Hammond freely and independently disinherited her sister. In fact, Brian Sayers admitted on cross examination that Hammond incorrectly believed that her stepchildren would inherit her estate if her husband predeceased her and she then died intestate. Sayers took no effort to correct Hammond’s misapprehension; instead, he specifically directed Lightfoot to prepare a will calling for Hammond’s estate to pass to him and his family members rather than to her sister (appellant’s mother) if Hammond’s husband predeceased her.
The majority opinion attempts to evade this glaring defect by reviewing the testimony offered by Sayers and his witnesses in reaching the following conclusion: “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.” However, none of that testimony explained why a childless woman decided to sign a will that provided for her estate to pass to her children if her husband predeceased her. Sayers admitted during his testimony that although he lived with Hammond and her husband from his early childhood, Hammond knew she had not adopted him. Sayers admitted that it was his understanding and Hammond’s understanding that “if Uncle Willie were to die and she didn’t have a will, and this is what we discussed together, is that Bill and Margaret Ann (Hammond’s stepchildren) would receive the bounty of the estate.”
The fact that Mabel Hammond signed a will that referred to “my children” when she knew — or should have known — that she was childless and had not adopted appellee cannot be reasoned away by suggesting that Hammond “believed the will referred to her stepchildren.” Appellee testified that Hammond’s purpose for making the will was to prevent her stepchildren from inheriting her estate.
The will contains six references to a trustee. No trust was created by the will. The will makes no reference to a trust otherwise. There is no proof in the record that Mabel Hammond had a trust and no proof explaining why Mabel Hammond signed the will despite such language.
Sayers plainly did not satisfy the heavy burden of overcoming the rebuttable presumption of undue influence by proof beyond a reasonable doubt, the most stringent evidentiary standard in American, jurisprudence. Hence, the probate court erred when it summarily dismissed the undue influence issue by stating, “ The issue here is mental capacity as the facts do not indicate any undue influence.”
Mental Capacity
Sayers testified that Hammond feared 'that if shé did not have a will, her stepchildren would inherit her estate if her husband predeceased her.1 In fact, Hammond was survived by a sister, appellant’s mother, who would have inherited her estate had she died intestate. Certainly a reasonable doubt exists about Hammond’s mental capacity based on testimony that shows Hammond did not even realize her sister was a natural object of her bounty. Hammond’s failure to even question the reference to nonexistent children, combined with appellee’s testimony that she never indicated knowing that her sister was her natural heir and that she was consciously excluding her from her estate, create serious doubt that decedent recognized the natural claimants to her estate. No evidence contradicts Dr. Moore’s testimony that Hammond had been unable to manage her affairs for three years before her death and that the household and financial affairs were handled by her husband due to Hammond’s severe dementia. Brian Sayers admitted that Hammond did not know her assets.
When this proof is considered alongside Dr. Barry Moore’s testimony and that from other witnesses, it is even more difficult to defend the conclusion that Sayers proved beyond a reasonable doubt that Hammond possessed the requisite mental capacity when she signed the will. Dr. Moore opined that Hammond suffered from severe dementia. Dr. Moore testified that although Hammond was alert each time he spoke with her during her hospitalization and on the one occasion he observed her at the nursing home after her hospital discharge, she did not realize where she was during the hospitalization and was not oriented as to time and date. He never observed Hammond when she demonstrated “an island of clarity” in her mental faculties. Dr. Moore testified that Hammond’s husband had informed him that Hammond had been unable to take care of her affairs and household affairs for approximately three years before she was hospitalized in May 1998.
Despite Dr. Moore’s testimony that he knew of no instance when a person with such longstanding dementia as Hammond suffered suddenly improved to the point she could handle her affairs, and despite the fact that the record contains no contrary evidence from a physician, the probate court and majority refer to testimony by nursing home workers who attended Hammond in support of the result reached below and affirmed today. While I agree that we ordinarily defer to probate judges concerning witness credibility and the weight to be accorded testimony, that deference does not detract from our responsibility to conduct a de novo review of the record to determine if the probate court decision is clearly erroneous. See Noland, supra.
In this regard, the record shows that the nursing home personnel who testified about Hammond’s mental condition consistently documented that she was confused as to time and place. Hammond always told the nursing home staff that Brian Sayers was her son, not her great-nephew. None of the witnesses offered any testimony showing that Hammond had sufficient mental capacity to retain in her memory, without prompting, the extent and condition of her property and to comprehend how she wanted to dispose of it, to whom, and upon what consideration. See Richard v. Smith, supra. Given these realities, the probate court’s decision that appellee met his burden of proving beyond a reasonable doubt that Hammond had the requisite testamentary capacity is clearly erroneous.
Legal Ethics
Sadly, this case demonstrates how cavalier a lawyer can be when dealing with legal affairs affecting the elderly. Rule 1.1 of the Model Rules of Professional Conduct provides that a lawyer shall provide competent representation to a client and that competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.2 (a) provides that a lawyer shall abide by a client’s decision concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. Rule 1.4(b) states that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. The attorney who drafted this will owed these duties to Mabel Hammond, not Brian Sayers. Yet, by his own admission, counsel never met Hammond, spoke with her about the will, or otherwise dealt with her concerning what is now affirmed as her last will and testament. Even if I shared the view of this case held by the majority, I cannot condone or otherwise excuse the way counsel handled this serious transaction.
I respectfully dissent, and am authorized to state that Judges Stroud, Neal, and Crabtree join in this opinion.
Appellee testified as follows: “Well, it was my understanding — I mean I can’t presume, but I mean, my understanding that if, and her understanding that if Uncle Willie [the testator’s husband] were to die, and she didn’t have, you know a will, and this is what we discussed together, is that Bill and Margaret Ann [the testator’s stepchildren] would receive the bounty of her estate.”
Q: So she did not know that actually if she didn’t have a will that her estate would go to Mary Ann Griffith Pyle, Michael Pyle’s mother?
A: She never mentioned them, not one time.
Q: So there was never a discussion about who her natural heirs would be?
A: Uh-huh.
Q: Is that a yes?
A: Yes.