{ "id": 6138757, "name": "Rita HODGES v. Laverne CANNON and Alliene Cannon, the Estate of Alvin L. Moore, and Susan Fox as Executrix of the Estate of Alvin L. Moore, Deceased", "name_abbreviation": "Hodges v. Cannon", "decision_date": "1999-12-01", "docket_number": "CA 99-230", "first_page": "170", "last_page": "186", "citations": [ { "type": "official", "cite": "68 Ark. App. 170" }, { "type": "parallel", "cite": "5 S.W.3d 89" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "329 Ark. 39", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236207 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/329/0039-01" ] }, { "cite": "309 Ark. 192", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906105 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0192-01" ] }, { "cite": "335 Ark. 163", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862745 ], "weight": 6, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/335/0163-01" ] }, { "cite": "111 S.W.2d 219", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1989, "opinion_index": 0 }, { "cite": "300 Ark. 140", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886778 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0140-01" ] }, { "cite": "321 Ark. 150", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449590 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0150-01" ] }, { "cite": "60 Ark. App. 27", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136523 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark-app/60/0027-01" ] }, { "cite": "62 Ark. App. 208", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140086 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/62/0208-01" ] }, { "cite": "65 Ark. App. 165", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139148 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/65/0165-01" ] }, { "cite": "21 Ark. App. 233", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141236 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/21/0233-01" ] }, { "cite": "263 Ark. 467", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672713 ], "weight": 3, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0467-01" ] }, { "cite": "318 Ark. 474", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455719 ], "weight": 3, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0474-01" ] }, { "cite": "61 Ark. App. 182", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139771 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/61/0182-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-24-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "page": "(b)(l)(1987)" }, { "page": "(b)(1)" } ], "opinion_index": 0 }, { "cite": "330 Ark. 660", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298618 ], "weight": 3, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0660-01" ] }, { "cite": "9 Ark. App. 233", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140585 ], "weight": 4, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/9/0233-01" ] }, { "cite": "234 Ark. 290", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1688344 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/234/0290-01" ] }, { "cite": "285 Ark. 446", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877688 ], "weight": 5, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0446-01" ] }, { "cite": "94 S.W 51", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1906, "opinion_index": 0 }, { "cite": "78 Ark. 420", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1497314 ], "year": 1906, "opinion_index": 0, "case_paths": [ "/ark/78/0420-01" ] }, { "cite": "242 Ark. 604", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722161 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "611", "parenthetical": "quoting Boggianna v. Anderson, 78 Ark. 420, 94 S.W 51 (1906)" }, { "page": "628", "parenthetical": "quoting Boggianna v. Anderson, 78 Ark. 420, 94 S.W 51 (1906)" } ], "opinion_index": 0, "case_paths": [ "/ark/242/0604-01" ] }, { "cite": "236 Ark. 95", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1681298 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/ark/236/0095-01" ] }, { "cite": "250 Ark. 648", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636834 ], "weight": 3, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/250/0648-01" ] }, { "cite": "225 Ark. 505", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1642949 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/ark/225/0505-01" ] }, { "cite": "588 S.W.2d 701", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1719953, 1719855 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/267/0066-01", "/ark/267/0068-01" ] }, { "cite": "267 Ark. 68", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719855 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/267/0068-01" ] }, { "cite": "284 Ark. 42", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878672 ], "weight": 7, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/284/0042-01" ] }, { "cite": "284 Ark. 262", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878657 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/284/0262-01" ] }, { "cite": "310 Ark. 708", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898863 ], "weight": 3, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0708-01" ] }, { "cite": "67 Ark. App. 25", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136378 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/67/0025-01" ] }, { "cite": "310 Ark. 639", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898898 ], "weight": 5, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0639-01" ] }, { "cite": "323 Ark. 479", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445724 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0479-01" ] }, { "cite": "325 Ark. 16", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369284 ], "weight": 3, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0016-01" ] } ], "analysis": { "cardinality": 1102, "char_count": 28690, "ocr_confidence": 0.781, "pagerank": { "raw": 3.3100579061584645e-07, "percentile": 0.8724002827964101 }, "sha256": "f056adff7213f0c17e1d45396681490adb580c6e770bf1ea489c45682ab15ef7", "simhash": "1:bb306e66e9a4df9a", "word_count": 4870 }, "last_updated": "2023-07-14T19:17:49.300876+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Stroud and Neal, JJ., agree." ], "parties": [ "Rita HODGES v. Laverne CANNON and Alliene Cannon, the Estate of Alvin L. Moore, and Susan Fox as Executrix of the Estate of Alvin L. Moore, Deceased" ], "opinions": [ { "text": "Sam Bird, Judge.\nAppellant, Rita Hodges, appeals an order of the Benton County Probate Court dismissing her contest of the will of her late uncle, Alvin L. Moore. Hodges also appeals an order of the Benton County Chancery Court dismissing her complaint in which she alleged that she had an oral contract with Moore whereby he would make her a beneficiary of his will in return for her moving into his house and taking care of him. Hodges also appeals a joint order of the probate and chancery courts imposing sanctions on her and her counsel pursuant to Ark. R. Civ. P. 11. For clarity we will first set forth the underlying facts, followed by separate discussions of the decisions of the probate court, the chancery court, and the joint order of both courts.\nFacts\nRita Hodges, Alvin Moore\u2019s niece, had been named as the sole beneficiary of Moore\u2019s will, which he executed on October 23, 1996 (the 1996 will). However, on August 6, 1997, Moore revoked the 1996 will and executed a new one (the 1997 will) in which he designated appellees Lavern and Alliene Cannon, his longtime friends and neighbors, as the sole beneficiaries of his estate, and disinherited Hodges. Moore died of cancer on August 16, 1997, at the age of seventy-six.\nOn August 18, 1997, Susan Fox, an attorney and the designated executrix of Moore\u2019s 1997 will, filed a petition for probate of will and appointment of personal representative, and on the same day an order was entered admitting the will to probate and appointing Fox as executrix. On August 27, 1997, in probate court, Hodges filed a demand for notice of proceedings, a petition to remove Fox as the personal representative of the estate, a petition for appointment of herself as personal representative of the estate, and a contest of the 1997 will. Hodges alleged in her will-contest petition that the Cannons had procured the 1997 will through undue influence on Moore; that Moore lacked testamentary capacity to execute a valid will on August 6, 1997; that the will was not properly executed; and that Susan A. Fox, the executrix, was the preparer of, and benefitted from, the will.\nIn addition, on August 27, 1997, appellant filed in Benton County Probate Court and in Benton County Chancery Court identical complaints in which she alleged that there existed an oral contract by which Moore agreed to make her a beneficiary of his will in return for her moving into his house and taking care of him. In March 1998, appellee Fox filed a motion in probate court requesting that sanctions be imposed on appellant and her counsel pursuant to Ark. R. Civ. P. 11. The motion alleged a lack of proof supporting the allegations in Hodges\u2019s complaint and noted the court\u2019s disposition of the issues raised by pleadings. In a brief that accompanied the motion, Fox argued that Hodges\u2019s claims were not well grounded in fact, warranted by existing law, or a good-faith argument for the extension, modification, or reversal of existing law, but were interposed for the improper purpose of harassment, unnecessary delay, or needless increase in the cost of litigation.\nThe will contest in probate court and the contract case in chancery court were consolidated for trial, at which the presiding judge sat as both probate judge and chancellor. After Hodges presented her case-in-chief, the court granted appellees\u2019 motions to dismiss appellant\u2019s contract-based complaint in chancery court and appellant\u2019s petition contesting the will in probate court, which the court followed with written orders dated July 30, 1998, and August 3, 1998, respectively. On November 10, 1998, a joint order of the probate and chancery courts was entered imposing sanctions on appellant and her counsel pursuant to Ark. R. Civ. P. 11, holding appellant and her counsel jointly and severally liable for a portion of appellees\u2019 attorney\u2019s fees totaling $13,472.\nProbate Case\nProbate court orders are reviewed de novo on appeal and are not reversed unless the probate court clearly erred. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996); White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (1996). A probate court order is clearly erroneous if it is clearly against the preponderance of the evidence. In re Estate of Davidson, 310 Ark. 639, 839 S.W.2d 214 (1992). A probate court\u2019s finding of fact is clearly erroneous when, although there is evidence to support the fact found, the appellate court, on reviewing the entire evidence, is left with a definite and firm conviction that the probate court erred. Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999). We defer to the superior position of the probate judge to determine the credibility of witnesses and the weight to be accorded their testimony. Wells v. Estate of Wells, supra.\nIn a will-contest case, after the proponent of the will proves that it is rational on its face and has been executed and witnessed in accordance with testamentary formality, the party challenging the validity of the will is required to prove by a preponderance of the evidence that the will is invalid. In re Estate of Davidson, supra. In the case of a beneficiary of a will who procures the making of the will, a rebuttable presumption of undue influence arises, which places on the beneficiary the burden of going forward with evidence that would permit a rational fact-finder to conclude, beyond a reasonable doubt, that the will was not the product of insufficient mental capacity or undue influence. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992); Edwards v. Vaught, 284 Ark. 262, 681 S.W.2d 322 (1984); Rose. v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). A beneficiary procures a will, thereby causing the rebuttable presumption of undue influence to arise, by actually drafting it for the testator. See, e.g., Looney v. Estate of Wade, supra; Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979). A beneficiary also procures a will, thereby causing the rebuttable presumption to arise, by planning the testator\u2019s will and causing him to execute it. See Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955). However, a beneficiary who is merely present when a will is drafted does not, by his presence, procure the will. See, e.g., Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963). Whether the beneficiary procured the making of a will is a threshold question that must be answered in the affirmative before the beneficiary must prove beyond a reasonable doubt that the testator enjoyed both required mental capacity and freedom of will. See Rose v. Dunn, supra. However, the burden of proof, in the sense of the necessity to prove lack of mental capacity or undue influence by a preponderance of the evidence, remains on the party challenging the will. Id.\nThe degree of undue influence that invalidates a will is well established. The Arkansas Supreme Court has described this degree of undue influence:\nIt is not sufficient that the ... testator was influenced by the beneficiary in the ordinary affairs of life, or that he was in close touch and upon confidential terms with him; but 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.\nGross v. Young, 242 Ark. 604, 611, 414 S.W.2d 624, 628 (1967) (quoting Boggianna v. Anderson, 78 Ark. 420, 94 S.W 51 (1906)). Accord In re Estate of Davidson, supra; Reddoch v. Blair, 285 Ark. 446, 688 S.W.2d 286 (1985). In order to void a will, undue influence must be directed toward procuring a will in favor of particular parties. In re Estate of Davidson, supra; Rose v. Dunn, supra. However, a beneficiary of a will does not exercise undue influence over the testator merely because the beneficiary influenced him in the ordinary affairs of life or because the beneficiary was in a confidential relationship with the testator when he executed his will. Reddoch v. Blair, supra; Rosenbaum v. Cahn, 234 Ark. 290, 351 S.W.2d 857 (1961). In addition, a testator\u2019s decision to favor a person with whom he had developed a close and affectionate relationship is not, of itself, proof that the favored beneficiary procured the will by undue influence. See Reddoch v. Blair, supra; Abel v. Dickinson, supra.\nIn the November 1998 joint order, the probate court specifically found that the Cannons had not procured Mr. Moore\u2019s third will by the exercise of undue influence. In this order the probate court noted, \u201cNo one testified to any type of conversation, suggestions, intimidation or any other matter of pressure or coercion. There is no evidence of fear on the part of [Mr. Moore] or anyone which would have deprived him of his free will.\u201d\nThe lack of any undue influence on Mr. Moore exercised by the Cannons was established by the testimony of appellee Fox. Ms. Fox drafted not only the will at issue, but she had also drafted his previous two wills. Ms. Fox testified that on August 6, 1997, when Mr. Moore executed the will at issue in her office, she asked him if anyone was coercing him to make a new will and that Mr. Moore told her that he was not being coerced and that his decision to make a new will was a matter of his own flee will. Ms. Fox audiotaped Mr. Moore\u2019s execution of the will at issue, and a transcript of this tape was introduced into evidence as Defendant\u2019s Exhibit No. 1. Examination of this transcript shows that Ms. Fox asked Mr. Moore if the Cannons were forcing him to change his will and whether they had promised him anything and that Mr. Moore replied that the Cannons were not forcing him to change his will and that they had not promised him anything. Moreover, examination of this transcript shows that during the execution of his will Mr. Moore stated that he was doing so as a matter of his own free will. Mr. and Mrs. Cannon testified that they were not aware that Mr. Moore had made them the beneficiaries of the 1997 will until after he had don\u00e9 so. Appellant notes that on August 6, 1997, the Cannons drove Mr. Moore to Ms. Fox\u2019s law office; however, that they did so does not, of itself, prove that they exercised undue influence over Mr. Moore. See Reddoch v. Blair, supra; Rose v. Dunn, supra. Mr. Cannon testified that he drove Mr. Moore to Ms. Fox\u2019s law office because Mr. Moore asked him to do so. Moreover, both Mr. Cannon and Ms. Fox testified that the Cannons were not in the room when Mr. Moore executed the will at issue. In addition, Ms. Fox testified that in late July 1997 Mr. Moore appeared by himself at her law office and made an appointment to see her on August 6, 1997.\nWith regard to a testator\u2019s mental capacity to execute a will, if he has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom and upon what consideration, at the time the will is executed, then he possesses sufficient mental capacity to execute a will. Rose v. Dunn, supra; Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983). Evidence of the testator\u2019s mental condition, both before and after execution of the will at issue, is relevant to show his mental condition at the time he executed the will. See Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). A testator\u2019s old age, physical incapacity, and partial eclipse of mind will not invalidate a will if he has the requisite testamentary capacity when the will is executed. Green v. Holland, supra. A testator does not lack testamentary capacity merely because old age has impaired his mental faculties. See Noland v. Noland, supra.\nIn its August 1998 order, the probate court found that the appellees\u2019 proof of statements that Mr. Moore made when he executed his 1997 will, proved that, at that time, Mr. Moore had sufficient mental capacity to make a valid will. In the November 1998 joint order, the probate court stated, \u201cThere is nothing before the court which would suggest the elements of mental capacity were not present when [Mr. Moore] executed his will on August 6, 1997.\u201d Proof of Mr. Moore\u2019s possession, on August 6, 1997, of the requisite mental capacity to make a valid will was provided by the testimony of appellee Fox. Ms. Fox testified that she would not have allowed Mr. Moore to execute the will if she felt that he were not competent to do so. Moreover, she testified that, on August 6, 1997, Mr. Moore seemed fully competent to her and that he was aware that he was disinheriting Hodges and was making the Cannons the sole beneficiaries of his will. Examination of the transcript of the audiotape of Mr. Moore\u2019s execution of his will on August 6, 1997, reveals that Mr. Moore stated that he wanted to make the Cannons the beneficiaries of his will and that he wanted to remove appellant as a beneficiary because she had moved out of his house and did not want to continue to provide care for him. Appellant notes that there was testimony that Mr. Moore\u2019s mental faculties were in decline by August 6, 1997. However, a testator\u2019s physical incapacity and partial eclipse of mind will not invalidate a will if the testator had the requisite testamentary capacity when he executed his will. Green v. Holland, supra. Appellee Fox\u2019s testimony established that Mr. Moore had the requisite testamentary capacity when he executed the 1997 will.\nChancery Case\nAppellant\u2019s contention that the chancery court erred in finding that she did not have an oral contract with Mr. Moore pursuant to which he would make her a beneficiary of his will is governed by the provisions of Ark. Code Ann. \u00a7 28-24-101(b)(l)(1987). Section 28-24-101(b)(l) states that a contract to make a will can be established (insofar as is pertinent to this case) only by a statement of the material provisions of the contract in a provision of the will or by an express reference to the contract in a will and extrinsic evidence proving the terms of the contract. The essential elements of a contract are: 1) competent parties; 2) subject matter; 3) legal consideration; 4) mutual agreement; and 5) mutual obligations. Odom Antennas, Inc. v. Stevens, 61 Ark. App. 182, 966 S.W.2d 279 (1998). A contract to make a will is valid when the evidence offered to establish the contract is clear, cogent, satisfactory, and convincing. Pickens v. Black, 318 Ark. 474, 885 S.W.2d 872 (1994); Apple v. Cooper, 263 Ark. 467, 565 S.W.2d 436 (1978). This evidence must be so strong as to be substantially beyond a reasonable doubt. Pickens v. Black, supra. When a trial court\u2019s decision on the existence of a contract to make a will turns on the assessment of witness credibility, we defer to the trial judge\u2019s superior position to make this assessment. Apple v. Cooper, supra; Purser v. Kerr, 21 Ark. App. 233, 730 S.W.2d 917 (1987).\nAlthough we try chancery cases de novo on the record, we do not reverse unless we determine that the chancery court\u2019s findings were clearly erroneous. Ark. R. Civ. P. 52(a); Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999). A chancery court\u2019s finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). In reviewing a chancery court\u2019s findings, we defer to the chancellor\u2019s superior position to determine the credibility of witnesses and the weight to be accorded their testimony. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).\nThe chancery court found that appellant introduced no evidence that would prove, pursuant to section 28-24-101 (b)(1), that appellant had an oral contract with Mr. Moore whereby he would make her a beneficiary of his will in return for appellant\u2019s moving into his house and providing care for him. In the November 1998 joint order, the chancery court stated, \u201c[The court] cannot find an enforceable oral contract between [Mr. Moore] and [appellant] was intended or that one ever existed.\u201d Appellant failed to satisfy the requirements of section 28-24-101 (b)(1) because-neither Mr. Moore\u2019s 1996 will, in which appellant was named beneficiary, nor the will at issue, contains a statement of the material provisions of a contract between Mr. Moore and appellant, and neither will contains an express reference to a contract between them. Several witnesses testified that Mr. Moore had named appellant as the beneficiary of the 1996 will because he was unhappy that appellant\u2019s mother, his late sister, had left appellant only $1,000 in her will. Appellant herself testified that she tried to explain to Mr. Moore the arrangements she had made with her mother regarding what her mother would leave her in her will, but that he did not believe appellant\u2019s mother had treated her fairly. Moreover, appellant testified that Mr. Moore told her that he was going to make her a beneficiary of his will because she was the only relative that had kept in touch with him over the years and was the only one that was doing anything for him. It is true that appellant testified that after Mr. Moore made her the beneficiary of his will in October 1996, she agreed to keep house for him, cook his meals and take care of him, but appellant\u2019s testimony in this regard simply does not satisfy the requirements of section 28-24-101(b)(l). Thus, the chancellor\u2019s decision that there was no valid contract to make Hodges a beneficiary of Moore\u2019s will is not clearly erroneous.\nSanctions\nFinally, appellant asserts that the probate court and the chancery court erred in granting the appellees\u2019 motion for sanctions, pursuant to Ark. R. Civ. P. 11, against her and her counsel. In the November 1998 joint order the courts awarded Fox and Mr. Moore\u2019s estate an attorney\u2019s fee of $6,736 and awarded appellees Lavern and Alliene Cannon an attorney\u2019s fee of the same amount. The courts ordered that appellant and her counsel were jointly and severally liable for the attorney\u2019s fee awards. We conclude that the courts erred in granting appellees\u2019 motion for sanctions pursuant to Rule 11.\nRule 11 states in pertinent part:\nEvery pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated.... The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney\u2019s fee.\nThe primary purpose of Rule 11 sanctions is to deter future litigation abuse and the award of attorney\u2019s fees is but one of several methods of achieving this goal. See Crockett & Brown, P.A. v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995). When a trial court determines that a violation of Rule 11 has occurred, the Rule makes sanctions mandatory. Id. The moving party has the burden to prove a violation of Rule 11. Bratton v. Gunn, 300 Ark. 140, 111 S.W.2d 219 (1989). The imposition of sanctions pursuant to Rule 11 is a serious matter to be handled with circumspection, and the trial court\u2019s decision is due substantial deference. Williams v. Martin, 335 Ark. 163, 980 S.W.2d 248 (1998). We review a trial court\u2019s determination of whether a violation of Rule 11 occurred under an abuse-of-discretion standard. Id. In deciding an appropriate sanction, trial courts have broad discretion not only in determining whether sanctionable conduct has occurred, but also what an appropriate sanction should be. Id. When a trial court imposes a monetary award as a Rule 11 sanction, the trial court should explain the reason for the sanction so that a reviewing court may have a basis to determine whether the chosen sanction is appropriate. Id. The trial court should consider: 1) the reasonableness of the moving party\u2019s attorney\u2019s fees; 2) the minimum sanction necessary to deter the nonmoving party from future misconduct; 3) the ability of the nonmoving party to pay; and 4) factors relating to the severity of the nonmoving party\u2019s Rule 11 violation. Id.\nPursuant to Rule 11, an attorney signing a pleading, motion, or other paper on behalf of a party constitutes a certificate that: 1) the attorney made a reasonable inquiry into the facts surrounding the document or pleading; 2) the attorney made a reasonable inquiry into the law supporting that document to insure that it is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and 3) the attorney did not interpose the document for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation. Id; Ward v. Dapper Dan Cleaners and Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992).\nRule 11 is not intended to permit sanctions just because the trial court later decides that the attorney against whom sane-tions are sought was wrong. Crockett & Brown, P.A. v. Wilson, supra. In exercising its discretion under Rule 11, the trial court is expected to avoid using the wisdom of hindsight and should test the lawyer\u2019s conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted. Id. The essential issue is whether the attorney who signed the pleading or other document fulfilled his or her duty of reasonable inquiry into the relevant law, and the indicia of reasonable inquiry into the law include the plausibility of the legal theory espoused in the pleading and the complexity of the issues raised. Id. The moving party establishes a violation of Rule 11 when it is patently clear that the nonmoving party\u2019s claim had no chance of success. See Chlanda v. Killebrew, 329 Ark. 39, 945 S.W.2d 940 (1997).\nAlthough we have concluded that the probate judge\u2019s decision that Moore was competent to execute his will is not clearly against a preponderance of the evidence, we do not believe that there is a complete lack of evidence in the record to support appellant\u2019s contention that Moore lacked testamentary capacity or that appel-lees procured the will, and we are unable to say that Hodges\u2019 contest of Moore\u2019s 1997 will had \u201cno chance of success.\u201d\nFor example, appellant\u2019s daughter, Rhonda Kolle, a certified nurses\u2019 aid specializing in geriatrics, testified that, during the three days preceding Moore\u2019s execution of his will, she stayed with Moore in his home and found it hard to carry on a conversation with him because he would \u201cdrift off\u2019 and not comprehend what was being said, that Moore thought she (Kolle) was her mother (appellant, Rita Hodges), that he could not remember things he had been told only a couple of hours earlier, and that he confused her present husband with her former one, even though he knew she had been through a \u201cnot very nice\u201d divorce from her previous husband. Furthermore, there was evidence that Moore consumed large quantities of alcoholic beverages during the brief period Kolle stayed with him, while simultaneously administering morphine for pain caused by his physical condition.\nAlso, even though we have held that the judge\u2019s decision that the appellees did not procure or unduly influence Moore in the making of his will is not clearly erroneous, we cannot say that the record is void of any evidence that supports that position, or that Hodges had no chance to succeed. After all, there was testimony that appellees drove Moore to the lawyer\u2019s office where the will was made, and that one of the appellees stayed at the lawyer\u2019s office while the will was being prepared and executed. This evidence, when coupled with Kolle\u2019s testimony about Moore\u2019s frail physical condition and con&sed mental state during the days that immediately preceded the will\u2019s execution, gives rise, at least, to cause for reasonable suspicion that the appellees may have exerted some influence over Moore in the preparation and execution of his will, especially in light of the fact that the appellees, although bearing no blood relationship to Moore and, therefore, not natural objects of his bounty, were named the sole beneficiaries of his substantial estate.\nTo avoid sanctions under Rule 11, a lawyer is required to make reasonable inquiry to determine that the allegations of a pleading are well grounded in fact and warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. The practice of law is not an exact science and a lawyer is not required, under Rule 11, to anticipate with precision how the evidence will be perceived or whose credibility will be given the most weight by the trier of fact. Mere negligence in the discovery of evidence, inadequate preparation for trial, strategic errors in the presentation and miscalculations of the effect of evidence, or failure to accurately predict the result of a trial, do not give rise to the imposition of sanctions under Rule 11 in the absence of a showing that pleadings in the case were interposed for an improper purpose, \u201csuch as to harass, or to cause unnecessary delay or needless increase in the cost of litigation.\u201d Ark. R. Civ. P. 11.\nWe do agree that Hodges\u2019s counsel should have known that, in view of the requirements of Ark. Code Ann. \u00a7 28-24-101(b)(1), Hodges could not prevail on her complaint in chancery court seeking to establish the existence of a contract to make a will. However, since the probate and chancery court cases were consolidated for purpose of trial, and since it is likely that the trial would have taken place even had the claim of an oral contract not been included, it does not appear to us that the length of the trial or the amount of appellees\u2019 attorney\u2019s fees would have been significantly affected had the oral contract claim not been made by Hodges. Consequently, we reverse and dismiss the Rule 11 sanctions against appellant and her counsel.\nAppellees have also filed a motion for costs and attorney fees arising out of this appeal, alleging that they were required to provide supplemental abstracting of pleadings and orders to which appellant \u201creferenced\u201d in her abstract, but failed to include \u201cthe basis\u201d of such pleading or order. Arkansas Supreme Court Rule 4-2 (a)(6) provides that an appellant\u2019s abstract need only include \u201csuch material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.\u201d Likewise, Arkansas Rule of Appellate Procedure \u2014 Civil 6(c), provides that \u201c[a]ll matters not essential to the decision of the questions presented by the appeal shall be omitted.\u201d We have carefully examined appellant\u2019s abstract and do not find that the pleadings and orders are so abridged as to preclude our understanding of the issues presented for appeal. Although appellant\u2019s abstract significantly abbreviates the pleadings and orders in the case, it appears to us that she has merely excised matters not pertinent to the issues on appeal, as required by the rules. Appellees\u2019 motion does not refer us to any particular pleading or order that they deem to be insufficiently abstracted, and our review did not reveal any. Furthermore, appellees\u2019 supplemental abstract appears to include portions of the record that are not essential to our understanding of the issues. Therefore, appellees\u2019 motion for attorney fees relating to this appeal is denied.\nAffirmed in part and reversed and dismissed in part.\nStroud and Neal, JJ., agree.", "type": "majority", "author": "Sam Bird, Judge." } ], "attorneys": [ "Evans & Evans, by: James E. Evans, Jr., for appellant.", "Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: Edwin N. McClure; and Stephen Lee Wood, P.A., by: Stephen Lee Wood, for appellees." ], "corrections": "", "head_matter": "Rita HODGES v. Laverne CANNON and Alliene Cannon, the Estate of Alvin L. Moore, and Susan Fox as Executrix of the Estate of Alvin L. Moore, Deceased\nCA 99-230\n5 S.W.3d 89\nCourt of Appeals of Arkansas Division I\nOpinion delivered December 1, 1999\nEvans & Evans, by: James E. Evans, Jr., for appellant.\nMatthews, Campbell, Rhoads, McClure & Thompson, P.A., by: Edwin N. McClure; and Stephen Lee Wood, P.A., by: Stephen Lee Wood, for appellees." }, "file_name": "0170-01", "first_page_order": 198, "last_page_order": 214 }