[2-4] We review probate matters de novo on appeal but will not reverse the findings of the probate judge unless they are clearly erroneous. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). Further, in an appeal from the granting of summary judgment, all of the facts and circumstances are viewed in a light most favorable to the party against whom the motion is directed.
She notes that the mental capacity of the maker of a trust or deed is presumed and it falls to the contestants to prove incapacity by a preponderance of the evidence. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). Jeanne argues that the presence of the presumption of undue influence does not negate the presumption of mental capacity.
[2, 3] As the appellant correctly states, questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considers them together. See Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Short v. Stephenson, 238 Ark. 1048, 386 Ark. 501 (1965). In Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (1970), the supreme court said:
[2-5] We first mention the well-settled rule that once the proponent of a will shows the will is rational on its face and has been executed and witnessed in accordance with the required statutory requirements, the party contesting the will's validity has the burden of proving by a preponderance of the evidence that the testator lacked mental capacity or was unduly influenced at the time the will was executed. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Gray v. Fulton, 205 Ark. 675, 170 S.W.2d 384 (1943). We next relate the recognized principle that the question of undue influence and mental capacity are so closely interwoven that they are considered together. See, e.g., Rose, 284 Ark. 42, 679 S.W.2d 180. If the maker of a will, or other instrument has sufficient mental capacity to retain in his or her memory, without promptings, the extent and condition of his or her property, and to comprehend how he or she is disposing of it, and to whom and upon what consideration, then he or she possesses sufficient mental capacity to execute such instrument.
Id. Even if there is a finding of procurement, the presumption of undue influence does not shift the burden of proof. Rose v. Dunn , 284 Ark. 42, 679 S.W.2d 180 (1984). The burden, in the sense of the ultimate risk of nonpersuasion, never shifts from the contestant of the will.
The requisite level of mental capacity to create a trust is defined as having “sufficient mental capacity to retain in his memory, without promptings, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom.” Rose [v. Dunn], 284 Ark. 42, at 46, 679 S.W.2d 180, at 182.Harbur v. O'Neal, 2014 Ark. App. 119, at 6, 432 S.W.3d 651, 656.
The trial court did not find credible her testimony that she did not know the content of the will or why the decedent went to the lawyer's office. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984), is similar to the instant case, but has a different result. There, Mr. Dunn drove the testator to the lawyer's office and participated in the initial discussions concerning making a will.
The test to determine whether a will is the product of undue influence is the same for a trust that takes effect, in part, at death. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997); Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). It is not enough that a confidential relationship exist in order to void a testamentary instrument; there must be a malign influence resulting from fear, coercion, or any other cause which deprives the testator of his free agency in disposing of his property.
Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (1970). See also Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). We attempted to recognize and reconcile the two lines of authority in Hodges v. Cannon, 68 Ark. App. 170, 177 5 S.W.3d 89, 95 (1999), when we said:
This statement of law has been followed by the supreme court ever since. See Able v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971); Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). From this record we are persuaded that the probate judge properly required the proponent of the will to go forward with the evidence, i.e., to produce evidence establishing that the will was not a product of undue influence. Appellants also contend that the probate judge's finding that there was no undue influence is clearly against the preponderance of the evidence.