dissenting. 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. I cannot join this conclusion.
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:
Obviously, a proponent of a will, who is a beneficiary and who drafted or caused to be drafted a will, does not enjoy the usual legal advantages given to a document otherwise drawn.
[B]ecause proof of mental capacity and the lack of undue influence must be proved beyond a reasonable doubt, those advantages, which make it relatively easy to admit a will to probate, obviously do not exist.
Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979). While capacity at the time of the will’s execution is the extent of our inquiry, the testator’s condition either before or after the time of making the will is relevant as indicating the testator’s condition at the time of signing the instrument. Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992). One commentator has explained that “ [i]n order to place the condition of testator’s mind clearly before a jury or a court it is necessary to receive evidence of his condition before and after the time of the execution of the will. . . [t]his can, as a matter of fact, often be determined only from a consideration of his conduct, behavior, methods of thinking, and the like, extending over a period of time.” 3 Page on the Law of Wills §- 29.58 (1961 & Supp. 1997).
Here, the majority acknowledges that the trial court heard “a considerable amount of conflicting testimony” on the subject of Wesley Noland’s mental capacity. However, the majority primarily emphasizes that, in its view, the videotaped execution of the trust and deed demonstrates that 'Wesley Noland possessed the requisite capacity on September 27, 1991. In support of its position that this videotape shows a man “who essentially knew what he was doing,” and that there was “was a complete absence of proof that Wesley Noland was not lucid” at the time of execution, the majority provides citations to cases where the burden had not shifted to the proponents to prove capacity beyond a reasonable doubt. See Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992) (affirming trial court’s determination that the contestant failed to meet his burden of proving lack of capacity by a preponderance of the evidence); Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (affirming trial court’s finding that the contestant failed to prove lack of capacity; trial court did not err in declining to shift burden to proponents); Thiel v. Mobley, 223 Ark. 167, 265 S.W.2d 507 (1954) (reversing trial court’s finding that the contestant had established lack of capacity). By contrast, in cases where the burden shifted (or should have shifted) to the proponent to prove capacity and lack of undue influence beyond a reasonable doubt, I can find no reported case where this court has ever reversed the trial court’s finding that the proponent failed to meet her burden. See Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992) (affirming trial court’s finding that proponent failed to establish capacity and lack of capacity and undue influence beyond a reasonable doubt); Park v. George, 282 Ark. 155, 667 S.W.2d 644 (1984) (trial court erred in failing to shift burden to proponents; will under consideration declared void); Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980) (proponents failed to meet burden of proving capacity and lack of undue influence beyond a reasonable doubt); Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979) (proponents failed to meet burden of proving capacity beyond a reasonable doubt); Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955) (reversing trial court’s determination that proponents had rebutted presumption of undue influence beyond a reasonable doubt); Warner v. Warner, 14 Ark. App. 257, 687 S.W.2d 856 (1985) (affirming trial court’s finding that proponent failed to prove lack of undue influence beyond a reasonable doubt); Oliver v. Griffe, 8 Ark. App. 152, 649 S.W.2d 192 (1983) (affirming trial court’s finding that proponent failed to prove capacity and lack of undue influence beyond a reasonable doubt); Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981) (proponents failed to meet burden of proving capacity and lack of undue influence beyond a reasonable doubt).
While not intimating that this court could never reverse a trial court’s determination in this regard, I think that the trial court had considerable evidence before it concerning Wesley Noland’s deteriorating mental state, both before and after the execution of the trust, from which to glean a reasonable doubt as to his capacity at the time of execution. At the very least, I am not prepared to say that this determination was clearly erroneous. In my opinion the majority has substituted its view of the evidence for that of the trial court’s, without due consideration to the proponent’s heavy burden of proof, the trial court’s superior position to weigh evidence and evaluate credibility, and our applicable standard of review. For these reasons, I respectfully dissent.
Newbern and Corbin, JJ., join this dissent.