{ "id": 6136272, "name": "Wael ABDIN v. Delores ABDIN", "name_abbreviation": "Abdin v. Abdin", "decision_date": "2006-01-18", "docket_number": "CA 05-169", "first_page": "12", "last_page": "21", "citations": [ { "type": "official", "cite": "94 Ark. App. 12" }, { "type": "parallel", "cite": "223 S.W.3d 60" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "346 Ark. 209", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111365 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/346/0209-01" ] }, { "cite": "267 Ark. 723", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719813 ], "weight": 2, "year": 1979, "pin_cites": [ { "parenthetical": "holding that the proponent of a lost will must prove both the execution of the will the lack of revocation or fraudulent destruction" }, { "parenthetical": "holding that the proponent of a lost will must prove both the execution of the will the lack of revocation or fraudulent destruction" } ], "opinion_index": 0, "case_paths": [ "/ark/267/0723-01" ] }, { "cite": "30 Ark. App. 152", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139743 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/30/0152-01" ] }, { "cite": "344 Ark. 420", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210105 ], "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "holding that a trial judge's determination that one expert's testimony was entitled to more weight and credibility than the other expert's was within the scope of the judge's discretion" }, { "parenthetical": "holding that a trial judge's determination that one expert's testimony was entitled to more weight and credibility than the other expert's was within the scope of the judge's discretion" } ], "opinion_index": 0, "case_paths": [ "/ark/344/0420-01" ] }, { "cite": "76 Ark. App. 494", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6143302 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/76/0494-01" ] }, { "cite": "72 S.W.2d 237", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1934, "pin_cites": [ { "parenthetical": "holding that circumstantial evidence that a will was never executed may outweigh testimony of witnesses who allegedly witnessed the will" } ], "opinion_index": 0 }, { "cite": "189 Ark. 330", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1425619 ], "year": 1934, "pin_cites": [ { "parenthetical": "holding that circumstantial evidence that a will was never executed may outweigh testimony of witnesses who allegedly witnessed the will" } ], "opinion_index": 0, "case_paths": [ "/ark/189/0330-01" ] }, { "cite": "47 Ark. App. 37", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136667 ], "weight": 3, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark-app/47/0037-01" ] }, { "cite": "272 Ark. 475", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174845 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0475-01" ] }, { "cite": "72 Ark. App. 46", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136853 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/72/0046-01" ] }, { "cite": "294 Ark. 222", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895724 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/294/0222-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-40-302", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2004, "opinion_index": 0 }, { "cite": "81 Ark. App. 36", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136530 ], "weight": 7, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/81/0036-01" ] } ], "analysis": { "cardinality": 956, "char_count": 20775, "ocr_confidence": 0.775, "pagerank": { "raw": 1.8212599665473292e-07, "percentile": 0.7192494620342731 }, "sha256": "5346f4c71e01271d08902cf4e36e2e8c5987be12cfa3f3ad90da8b0b23252ea0", "simhash": "1:230068a2b0003d47", "word_count": 3570 }, "last_updated": "2023-07-14T18:52:04.997483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hart and Baker, JJ., agree." ], "parties": [ "Wael ABDIN v. Delores ABDIN" ], "opinions": [ { "text": "David M. Glover, Judge.\nAppellant Wael Abdin appeals from the denial of his petition to probate a lost will. We affirm.\nMuhammad Abdeen, later known as Mike Abdin, immigrated to the United States from Israel in 1960. He married Delores Robertson in 1961, and they had two daughters. He found financial success as the owner of a jewelry store in Jacksonville, Arkansas, and through real-estate investments. Two of Mike\u2019s brothers, Wael and Ziad, also moved to the United States in the late 1960s or early 1970s. Mike\u2019s mother and several other brothers and sisters remained in Israel. Mike regularly provided financial assistance to his Israeli relatives, in particular his sisters and his late mother.\nBeginning in the 1970s, Mike traveled to Israel every year or two. On some occasions, he left blank checks for his family members to use as needed. His last trip occurred in January 2000, shortly before his death. At that point, he was suffering from heart disease and diabetes, which affected his eyesight and his ability to walk. Nevertheless, he made the trip and stayed for approximately one month. While there, he was a guest at the home of his brother Hatem. Hatem and another brother, Hani, would later testify that Mike executed a will during this trip. They stated that, upon Mike\u2019s request, they accompanied him into Jerusalem to see a \u201ccourt clerk\u201d named Khaled Alkam. Alkam worked in a street-side booth \u201cpreparing] legal documents,\u201d even though he had only a ninth-grade education. According to Alkam, who said that he identified Mike by his passport picture, Mike dictated the terms of his will in Arabic, and Alkam wrote out the terms by hand. Mike then read the handwritten will (using a magnifier) and signed it in Arabic, as did Hatem and Hani, who signed as witnesses. Next, Mike asked that the will be typewritten. Alkam took the handwritten version to a typist, and when he returned with the typewritten will, Mike read it (using a magnifier) and signed it in Arabic, as did Hatem and Hani, who signed as witnesses. Alkam then gave the handwritten will and the typed will to Mike. Thereafter, according to Hani, Mike threw the handwritten will away and retained the typewritten will. The typewritten version would later be offered as a lost will.\nAn English translation of the typed will shows it to be rather unusual by Western standards. It is made \u201cIn The Name of Allah Most Gracious Most Merciful,\u201d and it makes no precise bequest of money or property to any person. Instead, it provides for \u201cthe amount of money and property I have specified for my three sisters (and a Share for my family) according to the Islamic law of Allah and His Messenger,\u201d with the \u201cbiggest share\u201d going to \u201cmy sister Hala.\u201d It also contains several provisions stating that the testator \u201cwould like\u201d for the following to occur: 1) Wael to invest Hala\u2019s share for her; 2) Wael to buy a house and \u201cmake it an Islamic trust,\u201d to be leased, with the proceeds going to his other sisters; 3) \u201cyou to build a Mosque\u201d in Jerusalem named after Mike; 4) Wael to send someone to perform the Hajj obligation on behalf of Mike and his mother; 5) his brothers and sisters to buy a new store for his younger brother, Muhannad. Finally, the will states that the testator had:\nleft some signed checks with my brother Hani, so you may make use of them after I pass away. But you should wait until you talk with my wife Dolaris [sic] or Kathi [apparently Cathy Miller, the manager of the Arkansas jewelry store] to sell some of the property and deposit the money in the account. Or if you want to transfer the ownership from my name to your name and then you sell it; Kathi knows all the brokers that I deal with in real estate and she is good and helpful lady.\nFrom the family share, I would like you to build a DeWan (Hall or a Family Center) and to name it after my father\u2019s name. . . .\nThe will leaves nothing to Mike\u2019s wife and daughters and mentions them by saying, \u201cI would like that all of you have [sic] good relationship with my wife and with my daughter^].\u201d\nMike returned to Arkansas after his trip to Israel, and his health began to decline further. He was hospitalized and eventually died on March 15, 2000, leaving a substantial estate valued in the millions of dollars. On April 3, 2000, his wife Delores petitioned the Pulaski County Circuit Court to probate a will that Mike had executed in 1984. The will named Delores as Executrix and, except for a specific piece of property that was left to the daughter of Mike\u2019s business associate, Cathy Miller, bequeathed all of Mike\u2019s property to Delores. The will further provided that, should Delores predecease him, his estate should be left in trust to his two daughters. The circuit judge admitted the will to probate.\nThe purported lost will, in its typewritten form, was allegedly located in Israel forty days after Mike\u2019s death. According to Hani and Hatem, they entered the room where Mike had stayed at Hatem\u2019s home and discovered an envelope containing several of Mike\u2019s signed blank checks and the original typewritten will that Mike had executed in January 2000. Copies of the will were made and sent to the United States, although to whom is not clear. Hani later visited an Israeli attorney, Nabil Gheith, and asked Gheith to send the original of the will to Wael\u2019s Arkansas attorney, Richard Hatfield. However, according to Gheith, the original was lost in the mail.\nDue to the loss of the original document, Wael filed a petition in the Pulaski County on November 13, 2000, seeking to probate the Israeli will as a lost will. A photocopy of the purported will and an English translation of it were attached to the petition. On July 20 and 21, 2004, Judge Alice Gray held a hearing on the matter. Thereafter, she denied admission of the Israeli will to probate, ruling that Wael failed to prove that Mike had signed the will and further that, even if Mike\u2019s execution of the will had been proven, Mike had the opportunity to destroy the will in his lifetime. Wael now appeals and argues that the trial court clearly erred in ruling 1) that Mike did not sign the Israeli will, and 2) that Mike had the opportunity to destroy the will in his lifetime.\nProbate cases are reviewed de novo, but we will not reverse the probate judge\u2019s findings of fact unless they are clearly erroneous. Remington v. Roberson, 81 Ark. App. 36, 98 S.W.3d 44 (2003). A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed. Id. Due deference will be given to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Id.\nThe admission of lost wills to probate is governed by Ark. Code Ann. \u00a7 28-40-302 (Repl. 2004), which reads as follows:\nNo will of any testator shall be allowed to be proved as a lost or destroyed will unless:\n(1) The provisions are clearly and distinctly proved by at least two\n(2) witnesses, a correct copy or draft being deemed equivalent to one (1) witness; and\n(2) The will is:\n(A) Proved to have been in existence at the time of the death of the testator; or\n(B) Shown to have been fraudulently destroyed in the lifetime of the testator.\nUnder this statute, the proponent of a lost will must prove two things. First, he must prove the will\u2019s execution and its contents by strong, cogent, and convincing evidence. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988); Matheny v. Heirs of Oldfield, 72 Ark. App. 46, 32 S.W.3d 491 (2000). Second, he must prove that the will was still in existence at the time of the testator\u2019s death (i.e., had not been revoked by the testator) or that it was fraudulently destroyed during the testator\u2019s lifetime. Proof of this second element is necessary because the law presumes that an original will that cannot be found after a testator\u2019s death has been revoked. See Tucker v. Stacy, 272 Ark. 475, 616 S.W.2d 473 (1981); see also Remington, supra; Gilbert v. Gilbert, 47 Ark. App. 37, 883 S.W.2d 859 (1994). It is the failure to produce the original will that gives rise to the presumption. See Remington, supra. This presumption may be overcome, however, if the proponent of the lost will proves, by a preponderance of the evidence, that the will was not revoked during the testator\u2019s lifetime. See Remington, supra; Gilbert, supra.\nWe first address Wael\u2019s argument that the trial court clearly erred in ruling that he did not prove that Mike had executed the lost will.He cites several factors that he contends should lead us to conclude that Mike signed the will, including: 1) that the only direct testimony regarding the signature came from Khaled Alkam (the clerk), Hani, and Hatem, all of whom said that they saw Mike sign the will; 2) that Wael and Ziad, who were very familiar with the Arabic language and Mike\u2019s signature, identified his signature on the will; 3) that the estate\u2019s expert document examiner, Linda Taylor, who testified that she could not identify the signature as Mike\u2019s, did not consider the effect that Mike\u2019s age and illness might have had on his signature, nor did she have any experience analyzing Arabic signatures; 4) that the evidence is undisputed that Mike had a history of sending money to his family; 5) that the Koran allows a Muslim to dispose of one-third of his estate in any way he chooses, which the Israeli will would comply with, once Mike\u2019s jointly-held property and Delores\u2019s dower interest were deducted from his estate.\nDespite the above listed factors, our review of the record, as abstracted, shows that there was conflicting evidence on the issue of whether Mike signed the Israeli will. Wael testified that, while Mike was in Jerusalem, Mike called him and told him that he \u201ctook care of the will.\u201d Ziad testified that, after Mike returned from Jerusalem, he told Ziad that he \u201cdid all of the paperwork to take care of my sisters and her kids [sic] and my younger brother.\u201d Both men also identified the Arabic signature on the Israeli will as Mike\u2019s. Further, they testified that Mike regularly sent money to his Israeli relatives and often left blank checks in Jerusalem. Ziad said that, just before Mike went to Jerusalem, Mike told him that:\nI did leave some checks in Jerusalem. If ever something happened to me, I got some checks, and there could be \u2014 these checks will be distributed to some of my sisters and my brother from real estate he had here in the states, and he said I don\u2019t have the money in the bank, but I have the real estate. Y ou can use some of this money to help, you know, my sisters and my brother, my younger brother, and [Mike] wanted to do something for building like some kind of mosque or like a hall for the family, and [Mike] said that\u2019s \u2014 [Mike] left some of these checks in Jerusalem to be used after [Mike\u2019s] death.\nMike\u2019s brothers Hani and Hatem also testified that Mike had signed the will. The clerk who drafted the Israeli will, Khaled Alkam, stated that he identified Mike by his passport and drafted the will as Mike requested. Additionally, Wael\u2019s document examiner, Curtis Baggett, testified that the Arabic signature on the Israeli will was Mike\u2019s. Imam Islam Musad of the Islamic Center in Little Rock explained that there is an obligation under the Koran for males to take care of females; that the Koran provides for fixed shares for certain relatives; and that a person has the flexibility to dispose of one-third of his assets as he wishes.\nHowever, the proof presented by the estate contradicted much of the above evidence. Delores and Cathy Miller, who had managed Mike\u2019s jewelry store for twenty-six years, testified unequivocally that the signature on the will was not Mike\u2019s. Despite Wael\u2019s claims that these women were not familiar with the Arabic language, Delores said that she had seen Mike\u2019s Arabic signature fifteen to twenty times, and Miller said that she had seen it \u201cpossibly a dozen times.\u201d Furthermore, each witness, in testifying that the signature on the will was not Mike\u2019s, offered an explanation that did not depend on a knowledge of the Arabic language. Delores said that the signature on the will was small and neat, whereas Mike \u201ccouldn\u2019t write like that. He would write real big and you could hardly read it.\u201d Miller said that Mike \u201ccouldn\u2019t see to write in a space that small for one thing. It is so level on the line. It\u2019s just not possible that he could write on a straight line. It\u2019s a hundred percent not possible.\u201d Both women additionally testified that it would be unlike Mike not to make a provision for his daughters, who Delores testified were \u201chis life.\u201d Moreover, according to Delores, Mike had never mentioned drafting a will while he was in Israel.\nDelores and Cathy Miller also offered testimony tending to discredit Wael and Ziad. Delores said that Mike did not trust Wael because of Wael\u2019s gambling. Miller stated that, while Mike was dying in the hospital, Wael mentioned several times that he needed money, possibly $30,000, and implored Mike, on his deathbed, \u201cMike, tell Cathy to give me the money for the mosque.\u201d There was also evidence that Wael or Ziad may have countenanced the misuse of some of the signed blank checks that Mike left in Israel for his family\u2019s caretaking. After Mike\u2019s death, his siblings in Israel filled out seven of the checks in the amount of $200,000 each and one check in the amount of $300,000, and named themselves as payees. Later, in a petition filed by Ziad, they made a claim against the estate based on the checks. The claim was later withdrawn in 2004 when it was determined that the checks \u201cwere not valid\u201d under Arkansas law. Wael and Ziad explained that the checks were written after their efforts to resolve the situation with Delores proved unsuccessful.\nThe estate also called Linda Taylor, a certified document examiner, who testified that she could not identify Mike as the signer of the will. Finally, there was testimony from Mike\u2019s long-time friend, business associate, and attorney, Mike Wilson, who said that he prepared Mike\u2019s 1984 will and that he and Mike had discussed the tax implications of his estate many times since. He said that he did not believe that Mike would make a new will without his knowledge.\nGiven the above evidence, we cannot say that the trial court clearly erred in ruling that Wael failed to prove that Mike executed the Israeli will. Wael\u2019s arguments are, for the most part, attacks on the credibility of the estate\u2019s witnesses. He claims that his witnesses, who said that they actually saw Mike signing the purported lost will, were more believable than the estate\u2019s witnesses. However, it was within the trial judge\u2019s purview to believe Delores Abdin and Cathy Miller, who had known Mike for many years and who testified unequivocally that the signature on the will was not his. See generally Hanna v. Magee, 189 Ark. 330, 72 S.W.2d 237 (1934) (holding that circumstantial evidence that a will was never executed may outweigh testimony of witnesses who allegedly witnessed the will). Moreover, even though, as Wael claims, Delores Abdin and Cathy Miller had an interest in the outcome of the case, many of Wael\u2019s witnesses were interested as well, in that their family would benefit from the probate of the Israeli will. Where the decision turns on the credibility of interested witnesses, we defer to the superior position of the trial court to judge their credibility. See Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002).\nWael\u2019s attack on the testimony of the estate\u2019s expert, Linda Taylor, is likewise a credibility matter. He claims that she failed to take Mike\u2019s age and illness into consideration in analyzing the signature on the will. However, Taylor testified that, even considering those factors, she would expect to see \u201cdifferent characteristics than what I was seeing in the questioned signature\u201d and that she did \u201cnot believe it was possible\u201d that the person who signed the known signature samples also signed the will. Wael also claims that Taylor had no background in analyzing Arabic signatures. However, Taylor\u2019s qualifications as a document examiner were formidable. She had worked for the FBI and the Arkansas Crime Lab, where she was the chief examiner of questioned documents; was board-certified since 1990; had a certificate from the Arkansas Commission on Law Enforcement Training; and had published articles in peer-review journals. By contrast, Wael\u2019s expert, Baggett, admitted that he was not board-certified. He testified that he had studied under Dr. Ray Walker, who was a doctor of divinity. He also said that he taught document examination through Handwriting University, a mail-order school, and that his son owned HandwritingUniversity.com, the \u201clargest handwriting analysis school in the world.\u201d He admitted that he had taken no continuing education classes, had never published in any trade journals, and that he had once been convicted of felony theft. Thus, it is ultimately the credibility of the expert witnesses that is at issue, and, on such questions, we defer to the trial judge. See Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001) (holding that a trial judge\u2019s determination that one expert\u2019s testimony was entitled to more weight and credibility than the other expert\u2019s was within the scope of the judge\u2019s discretion).\nFinally, while Wael argues that the Israeli will was consistent with Islamic law, even if such a consistency exists, there was evidence that the will was inconsistent with Mike\u2019s great affection for his daughters, who were not provided for at all in the Israeli will. Moreover, both Delores and Cathy Miller testified that the Israeli will did not \u201csound like\u201d Mike.\nIt was Wad\u2019s burden to prove by strong, cogent, and convincing evidence that Mike executed the Israeli will. See Matheny, supra. Considering the evidence in this case as a whole, we cannot say that the trial judge clearly erred in ruling that Wael did not meet his burden. We therefore find no error on this point.\nIn light of our holding that Wael failed to prove the execution of the Israeli will, it is not necessary for us to resolve the issue of whether the trial court erred in ruling that Mike had the opportunity to destroy the will during his lifetime. However, we note that there is no evidence that Mike had actual possession of the will or access to it after he returned to the United States. No one saw the will in his possession, and he never mentioned having custody of it. There is, in fact, considerable evidence that the purported will remained in Jerusalem. Nevertheless, Wael\u2019s prevailing on this point is inconsequential, given our ruling regarding the execution of the will. See Thomas v. Thomas, 30 Ark. App. 152, 784 S.W.2d 173 (1990); Wharton v. Moss, 267 Ark. 723, 594 S.W.2d 856 (Ark. App. 1979) (holding that the proponent of a lost will must prove both the execution of the will the lack of revocation or fraudulent destruction).\nWe conclude by mentioning an evidentiary argument that Wael makes for the first time in his reply brief. During the testimony of expert witness Linda Taylor, she stated that her opinion had been reviewed by another document examiner, Mr. Bear Chandler. Wael objected on the ground of hearsay, but the trial court overruled the objection. Wael argues that the trial judge erred in permitting the testimony.\nIt is well established that we will not consider an argument made for the first time in a reply brief. See Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 375 (2001). However, there is an unusual circumstance in this case. Prior to his reply briefs being filed, Wael filed a motion asking for permission to \u201csupplement the record.\u201d He claimed that his objections to Taylor\u2019s testimony did not \u201cappear in the abstract,\u201d and he submitted two pages of supplemental abstract containing that material. We granted the motion to supplement. However, Wael\u2019s motion did not make it clear that he would be raising an argument regarding this testimony for the first time in his reply brief. He did not seek permission to raise a new argument but only to supplement his abstract. Under these circumstances, he remains bound by the general rule that we do not consider arguments raised for the first time in a reply brief.\nAffirmed.\nHart and Baker, JJ., agree.\nBecause the decedent and many of the his family members bear the surname \u201cAbdin,\u201d we will use first names in this opinion to prevent confusion.", "type": "majority", "author": "David M. Glover, Judge." } ], "attorneys": [ "Hatfield & Lassiter, by: Richard F. Hatfield, for appellant.", "Bond & Chamberlin, by: Will Bond and Neil Chamberlin, for appellee." ], "corrections": "", "head_matter": "Wael ABDIN v. Delores ABDIN\nCA 05-169\n223 S.W.3d 60\nCourt of Appeals of Arkansas\nOpinion delivered January 18, 2006\nHatfield & Lassiter, by: Richard F. Hatfield, for appellant.\nBond & Chamberlin, by: Will Bond and Neil Chamberlin, for appellee." }, "file_name": "0012-01", "first_page_order": 38, "last_page_order": 47 }