Wiseman v. Keeter

550 S.W.3d 883
CourtCourt of Appeals of Arkansas
DecidedMay 9, 2018
DocketNo. CV–17–968
StatusPublished
Cited by3 cases

This text of 550 S.W.3d 883 (Wiseman v. Keeter) 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
Wiseman v. Keeter, 550 S.W.3d 883 (Ark. Ct. App. 2018).

Opinion

WAYMOND M. BROWN, Judge

Appellant Bradley Wiseman (Brad) appeals from an order of the Marion County Circuit Court declining to admit a June 3, 2015 will to probate. The court found that Brad failed to rebut the presumption that Patsy Malenke was under undue influence at the time she signed the will in question. Brad argues that the court erred by: (1) shifting the burden of proof and employing the wrong standard and (2) finding that he did not meet the burden. We affirm.1

Patsy died on June 28, 2015, at the age of 75. At the time of her death, she was survived by three children (Michael Wiseman, Teresa Wiseman Keeter, and Brad Wiseman) and five stepchildren (Brian2 Malenke, Teri Gisi, Robin Hunsperger, Jacob Schmitt, and Joe Schmitt). Her real and personal property was valued at $152,000,3 according to the petition to probate Patsy's will filed by Brad on October 22, 2015. The will in question was dated June 3, 2015, and left most of Patsy's estate to Brad. The June 3, 2015 will revoked an earlier will dated July 27, 2010, which left fifty percent of Patsy's estate to be equally divided by her children and the remaining fifty percent to be equally divided by her stepchildren. On November 6, 2015, Patsy's remaining survivors filed a will contest. They alleged that the 2015 will was invalid because it was executed under undue influence or duress and because Patsy was incompetent at the time of the will's execution.

A hearing took place on November 16, 2016. Dr. Gary Linker, a psychiatrist, testified that Patsy was admitted into North Arkansas Medical Center on June 15, 2015, based on a referral from Dr. Richard Chitsey due to hallucination and paranoia. He stated that he met Patsy on June 16 and that although she knew her name, she was unable to provide other basic details regarding her life due to her dementia. According to him, Patsy was very confused, disorganized, and scared throughout her stay at the hospital. He testified that Patsy was administered the St. Louis University Memory Scoring test (SLUMS test), which only required basic information, and that she scored 1 out of 30, which indicated advanced dementia syndrome. He stated that there was also suspicion that Patsy had a stroke. He said that the family history he obtained showed that Patsy's dementia had been progressing *885over time, but had sped up rapidly. He testified that she was discharged on June 24, 2015, with a very poor prognosis.4 He opined that at the time of Patsy's discharge, her brain was in "failure mode." He further testified:

I cannot say whether or not she had the capacity to sign a will on June 3rd, as people can have lucid intervals and I had not treated her prior to June 16th. I can say on June 16th when I saw her first, she did not have the capacity to do anything complex. Based on her condition when I first saw her, that perhaps a fall or stroke could have caused her to deteriorate quickly enough to have been fine on June 3rd and then in the condition I saw her in on June 16th. It should be noted that she had an urinary tract infection upon being admitted on June 16th, and any sort of infection coupled with dementia can contribute to dementia and delirium. Also changes in environment can make you more susceptible to delirium. What made me think the signs of dementia were not based on the infection was the severity of the symptoms at the time I saw her.
I could say she was possibly impaired on June 3rd, but I could not say she was totally impaired. People with advance[d] dementia and severely advanced dementia do have the ability to make decisions. Dr. [Geoffrey] Dunaway's prior diagnosis of hallucinations and delusional thoughts would not change my opinion about her status on June 3rd. I worked with a judge who had a stroke and had very similar problems as [Patsy], but then he returned to the bench. Dementia and its symptoms can be very complex. The infection or a fall or something else could render her temporarily incapacitated and then she could be fine again. There is no way to say how she was on a day in which I did not see her, again when I saw her on the 24th, there was no way she could make a complex decision. Her SLUMS exam from February 24, 2014, would not change that opinion, because there are many factors that could have been in play that day. She could have times of being fine and periods of delirium and that is the bottom line. Even if she would have scored a 30 on the SLUMS exam, she could have still been incapable of complex decision close thereafter. In general, as the dementia disease progresses, dependency increases. Removal from familiar environments can cause dependence and confusion. Restriction from family and friends can cause increased dependency. The medications used to treat symptoms of dementia could diminish one[']s mental capacity. Her discharge summary referred to her dementia as chronic, which means had lasted longer than six months.

On cross-examination, Dr. Linker stated that he could not state whether or not Patsy was under undue influence at the time she executed the will in question. He stated that Dr. Chitsey's notes indicated that Patsy had been hallucinating and delusional and that was why she was referred to Dr. Linker's facility. He testified that he had never had a situation where Dr. Chitsey "would have seen a patient whom needed to be referred to [Dr. Linker], but he failed to do so, based on their mental impairment." He admitted that Dr. Chitsey's notes from June 3, 2015, indicated that Patsy was seen by him and was "having a good day." He testified that he learned on the day of the hearing that Dr. Dunaway had diagnosed Patsy with mild vascular dementia. He said that Patsy's condition did not improve while she was *886hospitalized. He opined that moving a patient in need of help could lead to failure due to the change. He stated that Patsy was given medication to sleep because her lack of sleep was an ongoing issue for her. He indicated that sleep was very important to someone with dementia. Dr. Linker stated that Patsy was in his facility for nine days, but he only spoke with Brad and Brad's wife, Kim, during that time.

On redirect, Dr. Linker stated that a period of hallucinations from February 2014 to May 2015 would be a potential symptom of dementia. However, he stated that cutting up clothing with scissors would be more of a disorganized behavior due to being overwhelmed and confused. He said that the disorganized behavior could wax and wane depending on how well the person slept. He also admitted that disorganized behavior could be a symptom of dementia. He testified that Dr. Chitsey's notes from June 13, 2015, indicated that Patsy's altered mental state had been going on for quite a while and that he took that to mean more than two weeks. He stated, "I have seen people who hallucinate robustly but they have an amazing ability to recall how much money they have and the names of their kids, etc."

On re-cross, Dr. Linker stated that even a lay person would have been able to recognize Patsy's poor mental condition on June 15, 2015.

Whitney Wiseman, Patsy's granddaughter, testified that she began living with Patsy in 2008 after Patsy's second husband passed away. She stated that Patsy lived in the home until May 2015, when she moved in with Brad. She testified that no one discussed Patsy's moving out with either her, her father, or her aunt. She said that Patsy had a mini stroke in February 2014 that changed her.

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Bluebook (online)
550 S.W.3d 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiseman-v-keeter-arkctapp-2018.