Wilson v. Lindvall

428 S.W.3d 532, 2013 Ark. App. 364, 2013 WL 2353790, 2013 Ark. App. LEXIS 370
CourtCourt of Appeals of Arkansas
DecidedMay 29, 2013
DocketNo. CV-12-1036
StatusPublished
Cited by4 cases

This text of 428 S.W.3d 532 (Wilson v. Lindvall) 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
Wilson v. Lindvall, 428 S.W.3d 532, 2013 Ark. App. 364, 2013 WL 2353790, 2013 Ark. App. LEXIS 370 (Ark. Ct. App. 2013).

Opinion

KENNETH S. HIXSON, Judge.

|, The decedent is Alvin H. Tittle. This case involves a dispute over his will between the decedent’s natural grandson and his mother, and the decedent’s stepdaughters by marriage. The appellants are Michael Shea Tittle (grandson) and Vicki Tittle Wilson (grandson’s mother). The appellees are Martha Lindvall (stepdaughter) and the Estate of Alvin H. Tittle, deceased. The decedent was married to Lorene and had one son, Tommy. In 1991, the decedent’s wife died. In 1994, the decedent married Beatrice Chadwick who had two daughters from a previous marriage who became the decedent’s stepdaughters. The decedent’s son died in 2004, survived by his wife Vicki and his son Michael. Later in 2004, the decedent changed his will to include his two stepdaughters as co-beneficiaries along with both appellants. The decedent died in 2011 at the age of ninety-four years. The trial court admitted the 2004 will into probate. The appellants, the grandson and his mother, filed a will ^contest alleging that the 2004 will was a product of undue influence and fraud. After a bench trial, the trial court found the 2004 will to be valid and denied appellants’ motion to vacate the order admitting will to probate. Vicki and Michael now appeal from that order. We affirm.

Our standard of review in probate cases is well settled. We review probate proceedings de novo on the record, but we will not reverse the findings of fact of the trial court unless they are clearly erroneous. Ashley v. Ashley, 2012 Ark. App. 236, 405 S.W.3d 419. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Morton v. Patterson, 75 Ark.App. 62, 54 S.W.3d 137 (2001). In conducting our review, we give due regard to the opportunity and superior position of the trial court to determine the credibility of the witnesses. Foster v. Hatfield, 2013 Ark. App. 169, 2013 WL 831126. Furthermore, while we will not overturn the probate judge’s factual determinations unless they are clearly erroneous, we are free in a de novo review to reach a different result required by the law. Id.

The will at issue in this case was executed on November 22, 2004, when Alvin was eighty-seven years old. Alvin’s will left his estate one-third to stepdaughter Martha, one-third to stepdaughter Betty, one-sixth to grandson Michael, and one-sixth to his son’s surviving wife, Vicki. The will nominated Martha as executrix. The will also granted a life estate in Alvin’s real estate to Beatrice, but Beatrice predeceased Alvin.

Alvin died on May 13, 2011. Pursuant to a petition filed by Martha, the trial court entered an order on May 25, 2011, admitting Alvin’s will to probate and appointing Martha |3executrix. Vicki and Michael contested the will on June 14, 2011, alleging in their motion that Alvin was in poor health and lacked the required testamentary capacity to execute the will. They also alleged that Alvin signed the will under undue influence, fear, and duress at a time when Martha was in a superior position and took advantage of his poor health and state of mind to benefit herself. The trial court entered the order being appealed on June 22, 2012, wherein it found that the appellants failed to prove undue influence in the making of the will and that Alvin was competent when his will was executed.

Alvin and Beatrice each had wills prepared by attorney Ed Scrimshire.1 Attorney Scrimshire was Martha’s then-boyfriend. Mr. Scrimshire’s secretary, Teresa Pilcher, was one of the witnesses to the wills, and she testified that on the day Alvin came to the office to execute his will Martha was not with Alvin. Alvin advised attorney Scrimshire that he wanted to leave everything to his stepdaughters, Martha and Betty. However, attorney Scrimshire thought that Alvin should leave something to Tommy’s wife, Vicki, and his grandson, Michael. At Mr. Scrimshire’s suggestion, Alvin decided to leave Vicki and Michael one-sixth each of his estate and his stepdaughters one-third each. Ms. Pilcher incorporated the suggestions into the will. Ms. Pilcher testified that Alvin drove to the office that day, and he gave her no concern about his competency to execute the will. She indicated that Alvin knew who his heirs were and knew what he was doing, and she never got any impression that he was being pressured or forced to make the will.

|4The other witness to the will was an attorney named Bob Frazier. Mr. Frazier swore in an affidavit that, as an attorney, he always confirms that a will he is witnessing is a voluntary act by the testator. Mr. Frazier gave the opinion that Alvin had the testamentary capacity to execute the will and that Alvin did not appear to be suffering from any mental disease or under the influence of any medication.

There was evidence that, after executing his will in November 2004, Alvin entrusted stepdaughter Martha with his personal and financial affairs. In February 2005, Alvin transferred assets from one of his investment accounts into an account that he and Martha held in joint tenancy. At the time of Alvin’s death, these funds were transferred to Martha. In February 2007, Alvin granted Martha a durable power of attorney. In October 2008, Alvin deeded some real property to himself and Martha. Alvin also signed a living will, which appointed Martha as his healthcare proxy to make decisions on his behalf should he become permanently unconscious.

Appellant Vicki Tittle Wilson testified at the bench trial. She stated that in the later years of Alvin’s life he suffered from multiple health problems, including heart problems and COPD, and that he had poor hearing and eyesight. Vicki stated that she had several conversations with Alvin before he executed the will in November 2004. According to Vicki, Alvin told her that he already had a will but that Martha and her boyfriend, Ed Scrimshire, were constantly coming to his house and wanting him to sign papers and add more heirs to his will. Vicki testified that Martha and her boyfriend would not leave Alvin alone, which made Alvin very upset. Vicki stated that Alvin promised that he would not sign [¿anything, but that sometime later he came to her crying and said he couldn’t take it any longer.

Vicki testified that after she discovered that Alvin had executed the November 2004 will, she asked him about it and he apologized and said “they kept on and on.” According to Vicki, Alvin said that Martha and her boyfriend threatened that if Alvin refused to execute the will Vicki would get all of his money. Based on what Alvin had told her, Vicki testified that Alvin was constantly bothered and coerced to sign the will and that it was not a voluntary act.

B.C. Edmistin and his father were longtime friends with Alvin. B.C. testified that Alvin was very close to his son, Tommy, and that Alvin was very hurt after Tommy died in June 2004. B.C. stated that sometime after Tommy died he overheard a conversation between his father and Alvin, and that Alvin complained that Martha and Ed Scrimshire were constantly bothering him to sign papers. B.C. testified that Alvin later told B.C.’s father that he finally just signed what he was told to sign. According to B.C., Alvin sounded like he was beaten down and he did not even know what he had signed.

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Bluebook (online)
428 S.W.3d 532, 2013 Ark. App. 364, 2013 WL 2353790, 2013 Ark. App. LEXIS 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-lindvall-arkctapp-2013.