Jack Nelson Jones Professional Association

May 13-19, 2019

In the Matter of the Estate of Elza Clifton Bond, Jr., Deceased, Charlotte Marcum, Lullen Holmes, Robert W. Snow, Jr. and Vicki Gottsponer, Appellants v. Barbara Gibson, Appellee, 2019 Ark. App. 241 (April 24, 2019)

This case comes on for appeal from Drew County Circuit Court, probate division, the Honorable Kenny Johnson presiding. The case involves the decision to admit a holographic will of Judge Elza Clifton Bond, Jr., to probate. The appellants were Judge Bond’s maternal first cousins, and the appellee, Barbara Gibson, was nominated as personal representative of Judge Bond’s estate in the holographic will. The Court of Appeals affirmed the lower court’s decision.

Judge Bond passed away on Feb. 17, 2014. A well-respected attorney and judge, he practiced law for over forty-five years. He had no children or siblings and was preceded in death by his parents and his wife. Judge Bond was survived by eight first cousins – four maternal and four paternal. The will at issue provided an inheritance only to the paternal cousins. Thus, if upheld, only the paternal cousins would have inherited but if struck down, all eight cousins would have taken equally.

On appeal, the appellants argued that it was erroneous for the circuit court to admit the will to probate. They further argued that it was erroneous for the court to place the burden of proving any incapacity on them. For the reasons discussed below, the Court upheld the probate court’s finding.

After Judge Bond death on Feb. 17, 2014, Frank Gibson, one of Judge Bond’s paternal cousins, found in a satchel a handwritten document that appeared to be a will while he was cleaning out Judge Bond’s house. He testified that there were other items in the satchel, the rest of which related to the death and funeral of Judge Bond’s wife. At the trial, several witnesses were asked about the handwriting on the document. Everyone who was asked testified that it was written entirely in Judge Bond’s handwriting. Judge Bond’s signature appeared at the end, but it was not dated. At the end of the document, there was a handwritten attestation clause with blanks in it. Those blanks were not filled in.

At trial, both parties presented several witnesses, including experts, to testify regarding the competency of Judge Bond. The lay witnesses primarily testified concerning their personal experience with Judge Bond over many years and, in particular, their time with him following the death of his wife, Marjorie Mae, on April 9, 2011. The testimony offered by both parties indicated that Judge Bond was mentally competent and in fairly good health through most of 2013. Johnathan Davis, a local forester, managed a timber cutting and sale for Judge Bond during the first half of 2013 and indicated that Judge Bond was able to both understand and handle the business transaction capably. There was some testimony offered that toward the end of 2013, Judge Bond occasionally exhibited odd behavior and hallucinations. On Dec. 18, 2013, Judge Bond was admitted to a hospital for an infection. From there he was transferred to three other facilities, and he passed away at the third facility. He did not return home after Dec. 18.

The circuit court admitted the will to probate. It found that three credible, disinterested witnesses established that the handwriting and signature belonged to Judge Bond and was signed in conformity with Arkansas Code Annotated section 28-25-104 (Repl. 2012), the holographic-will statute. The circuit court further found that once admitted, it was the appellants’ burden, as the ones contesting the will, to establish that the will was executed without testamentary capacity. The probate court upheld the will and appeal was taken to the Court of Appeals.

The Court noted as an initial matter that, while probate cases are reviewed de novo, the appellate Court will not reverse the circuit court’s findings of fact unless they are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the Court is left on the entire evidence with the firm conviction that a mistake has been committed. In this review, the Court noted it would defer to the circuit court’s evaluation of the credibility of the witnesses. The Court observed that Arkansas code provides that when the entire body of the will and the signature are written in the proper handwriting of the testator, then the will can be established by the evidence of at least three credible disinterested witnesses who testify to the handwriting and signature of the testator, notwithstanding that there may be no attesting witnesses to the will.

The appellants did not contend that the document admitted to probate did not meet those requirements. Instead, they first argued that Judge Bond lacked testamentary intent when creating it because it was undated and contained blanks in the attestation clause. They cited Peevy v. Ritcheson, 261 Ark. 841, 552 S.W.2d 218 (1977), for the proposition that a missing date demonstrates missing testamentary intent (Peevy failed because the holographic document was not signed), and they argued that several other states that have found that blanks in attestation clauses equally demonstrated missing testamentary intent. 

The Court rejected this contention, however, because dates and attestation clauses are not critical to the validity of a holographic will in Arkansas. The Court cited to Sneed v. Reynolds, 166 Ark. 581, 586 (1924), where the Arkansas Supreme Court explicitly stated that a holographic will need not be dated to be valid because the applicable statute does not require it to be, and in fact contemplates the admission of wills without attestation. 

The appellants acknowledged the precedent of Sneed, but did so to explain that, while the will might be statutorily sufficient, the lack of a date indicated a lack of testamentary intent. Again, the Court of Appeals rejected their argument noting that, the law surrounding testamentary intent is well settled. A will is a disposition of property to take effect upon the death of the maker of the instrument. To be a valid will, an instrument must be executed with testamentary intent, which is the intention to dispose of one’s property upon one’s death. The Court observed that it determined that intent of Judge Boyd by looking to the four corners of the handwritten instrument, titled “Last Will and Testament of Elza Clifton Bond, Jr.” The Court found that the document disposed of Judge Bond’s property; left instructions for his burial and how he would like his tombstone; and devised his property to his paternal cousins, who were correctly identified by name, as tenants in common. It was written entirely in Judge Bond’s handwriting and signed at the bottom. The Court held that this met the requirements of Arkansas Code Annotated section 28-25-104, which requires only that the entire body of the will be written in the testator’s handwriting and signed. It found the statute did not require a date or witnesses to attest execution, and, therefore, the four corners of the document demonstrated that the writer intended to make a testamentary disposition.

The appellants argued that extrinsic evidence established that Judge Bond did not have testamentary intent at the time of the document’s execution. They cited evidence that Judge Bond had told some people that he did not have a will and that he had said that his intent was for the cousins to “fight it out.” However, the Court held that, because the testamentary intent was established within the four corners of the document, written and signed by the judge himself, the consideration of extrinsic evidence was unnecessary and not appropriate. 

Next, the appellants argued that the circuit court erred in placing the burden of proof of testamentary capacity on them and not on the petitioners. The Court of Appeals observed, however, that the burden of proving mental incompetency, which will defeat a will, was upon the party contesting it. Here, the circuit court stated in its order that “[t]he holographic will was not dated and because of that fact, the Court, correctly or incorrectly, shifted the burden of going forth with the evidence of incapacity to the petitioners. However, the ultimate burden of proving mental incompetency never shifted from the contestant of the will.” The circuit court then went on to summarize the testimony regarding Judge Bond’s mental capacity in the later stage of his life. It found that Judge Bond was competent until “toward the end of 2013.” It further found that the document was executed with the statutory formalities and was made with a clear intent to dispose of property after the testator’s demise. It found that the appellants did not meet the ultimate burden of proving incompetency at the time the will was executed. The Court of Appeals found that these findings were not clearly erroneous.

Finally, the appellants asked the Court to consider adopting a burden-shifting framework similar to one in California’s holographic-wills statute. That statute provided that “[i]f it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.” However, the Court declined to entertain this argument because adopting such a new framework was not for a court to do but was a matter of public policy more appropriately within the purview of the legislature. 

Accordingly, the decision of the circuit court was affirmed in all aspects.