Balletti v. Muldoon

991 S.W.2d 633, 67 Ark. App. 25, 1999 Ark. App. LEXIS 431
CourtCourt of Appeals of Arkansas
DecidedJune 9, 1999
DocketCA 98-1098
StatusPublished
Cited by7 cases

This text of 991 S.W.2d 633 (Balletti v. Muldoon) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Balletti v. Muldoon, 991 S.W.2d 633, 67 Ark. App. 25, 1999 Ark. App. LEXIS 431 (Ark. Ct. App. 1999).

Opinion

John Mauzy Pittman, Judge.

This appeal is brought from an order of the Garland County Probate Court denying probate of the last will and testament of John Hollyfield. We reverse and remand.

John Hollyfield died on October 9, 1996. He was survived by four children: Joni Evans, Ginger Hollyfield, James Hollyfield, and appellee Audra Muldoon. On June 26, 1996, three and one-half months prior to his death, Hollyfield executed a will in which he devised his entire estate to the John E. Hollyfield Living Trust. That same day, he amended the trust to make his longtime companion, appellant Evelyn Balletti, its primary beneficiary. Following Hollyfield’s death, Balletti filed a petition to probate the will. Her petition was contested by Hollyfield’s children. After a hearing, the probate judge found that significant questions existed regarding Hollyfield’s execution of the will and Hollyfield’s mental capacity. He therefore refused to probate the will. On appeal, appellant contends that the will was executed in accordance with the law and that appellee failed to prove that Hollyfield lacked the testamentary capacity to make the will.

On June 28, 1994, Hollyfield established the John E. Hol-lyfield Living Trust to receive the benefits to which he was enti-ded under several family trusts. Although the record does not contain the terms of the Living Trust, we do know that First Commercial Trust Company was named as trustee. On the same day that he established the Living Trust, Hollyfield signed a will devising all of his property to the trust. The will named First Commercial as Hollyfield’s personal representative. Unfortunately, Hollyfield did not sign the signature page of the will. However, he initialed each page and signed the last page containing an attestation clause. The will was drafted by attorney David Goldman. One of the witnesses to the will was Patti Frazier, a secretary in Goldman’s office.

Approximately two years later, Hollyfield decided to amend the Living Trust to replace First Commercial with Boatmen’s Bank as trustee. On or about June 7, 1996, he contacted Goldman’s office and asked that the amendment be drafted quickly. According to Goldman’s secretary, Barbara Funtenatto, Goldman was out of the office. Because Hollyfield was in a hurry, she drafted the amendment herself, with the advice and counsel of another lawyer that was familiar with trust work. She then gave the amendment to Hollyfield. Later, she showed the amendment to Goldman for his approval.

On June 21, Hollyfield was hospitalized with severe respiratory failure. According to Dr. George Queen, Hollyfield’s physician for fifteen to twenty years, Hollyfield was seriously ill when admitted to the hospital. However, he improved over the next several days. During the course of his treatment, he received an antibiotic, a diuretic, a decongestant, Darvocet (a pain-killing drug), and Prednisone (an anti-inflammatory drug). Dr. Queen planned to release him from the hospital on July 4. However, on July 4, Hollyfield took a turn for the worse and was placed in the intensive-care unit. He remained hospitalized until August 1, approximately two months before his death.

On June 26, 1996, five days after he was hospitalized, Hol-lyfield executed the will that is the subject of this case. His execution of the will and several other documents that same day came about in the following manner. According to David Goldman, Hollyfield advised him that he wanted to revise his 1994 will and amend the terms of the Living Trust. Goldman drafted the necessary documents and directed Barbara Funtenatto and Patti Frazier to take them to the hospital for Hollyfield’s signature. According to Funtenatto, she presented Hollyfield with three documents. The first was the revised will. It was the same in all material respects as the 1994 will except that it named Boatmen’s Bank as personal representative rather than First Commercial. The second document was a re-typed version of the amendment that Funtenatto had prepared on June 7, which changed the trustee from First Commercial to Boatmen’s. Funtenatto said that she had never been comfortable with the form of the amendment, so she re-typed it in the same format as the third document she was carrying, a second amendment to the Living Trust. This amendment apparently made several changes in the terms of the trust. It provided that, upon Hollyfield’s death, appellant Evelyn Balletti would receive $1,800 per month, plus the house that the two shared; an additional $300 per month if the house was not paid off at the time of Hollyfield’s death; and all personal property and vehicles. The remainder of the trust property was to be distributed to Hollyfield’s grandchildren. His children were to take nothing under the trust.

Funtenatto testified that she went over the documents with Hollyfield in a general way. According to her, he was already familiar with their contents. Hollyfield then signed the will. His signature was witnessed by Patti Frazier and by Doug Driggers, a patient representative at the hospital. Funtenatto notarized the signatures. The trust amendments, signed at the same sitting, did not require witnesses.

Later in the day on June 26, according to David Goldman, he was contacted by Hollyfield regarding an error in the second amendment. Goldman had mistakenly used the figure of $1,800 rather than $1,500 as the amount to be distributed to appellant. Goldman asked Funtenatto to make the necessary changes and take the corrected version to the hospital for Hollyfield’s signature. She did so, saw Hollyfield sign the document, and notarized his signature the next day.

After his release from the hospital, Hollyfield executed no further documents pertaining to his will or his trust. There is no evidence that at any time prior to his death on October 9, 1996, he took any action to disavow the will or trust amendments he had executed on June 26.

After appellant filed her petition to probate the will and appellee filed her will contest, two days of hearings were held, several months apart. Appellee and her siblings contended that the signature on the will was suspect and that their father had been too ill to have the 'mental capacity to execute a will. The probate judge agreed and entered an order denying probate of the will. This appeal followed.

Before we begin our analysis of the issues, it is important to establish the scope of our review. We limit our decision to the efficacy of the 1996 will, not the 1994 will or the trust amendments. The 1994 will was not the subject of appellee’s contest. The efficacy of the trust amendments was outside the jurisdiction of the probate court, being a chancery matter. See Schenebeck v. Schenebeck, 329 Ark. 198, 947 S.W.2d 367 (1997). The probate judge recognized this and viewed the questions surrounding the trust amendments merely as evidence bearing on the validity of the will. We will do likewise.

Probate cases are reviewed de novo on the record. Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998). However, an order of the probate court will not be reversed unless clearly erroneous. Id.

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991 S.W.2d 633, 67 Ark. App. 25, 1999 Ark. App. LEXIS 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/balletti-v-muldoon-arkctapp-1999.