Arkansas Last Will and Testament Law

Wills and Estates – Last Will and Testament Law – Arkansas

Note:    This summary is not intended to be all inclusive of the Arkansas law of wills, but does include basic and other provisions.  It does not include a discussion of handwritten wills.

Wills and Estates – Last Will and Testament Law – Arkansas

Who may make wills: Any person of sound mind eighteen (18) years of age or older may make a will. 28-25-101.

In Hardy v. Ross, 237 Ark. 76, 371 S.W.2d 522 (1963), although at the time of the execution of a will a statute provided that a woman under age 21 had no power to execute a will conveying real property, will executed by executor when she was only 18 years old was valid and properly probated where, prior to her death, the statute was changed to provide validity for wills of persons of 18 years of age who were in their right mind.

Witnesses: Any person, eighteen (18) years of age or older is competent to be witness and may act as attesting witness to a will.  The requirement that an attesting witness must be 18 years of age or older is unequivocal and leaves no room for judicial interpretation or substantial compliance.  Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999).

Interested Witness: No will is invalidated because attested by an interested witness, but an interested witness, unless the will is also attested by two (2) qualified disinterested witnesses, shall forfeit so much of the provision therein made for him as in the aggregate exceeds in value, as of the date of the testator’s death, what he would have received had the testator died intestate.  No attesting witness is interested unless the will gives to him some beneficial interest by way of devise.  An attesting witness, even though interested, may be compelled to testify with respect to the will.  28-25-102.

Execution: The execution of a will other than holographic, must be by the signature of the testator and of at least two witnesses.  The testator shall declare to the attesting witnesses that the instrument is his will and sign his name thereto.  The signature must be at the end of the instrument and the act must be done in the presence of two or more attesting witnesses.  The attesting witnesses must sign at the request and in the presence of the testator. 28-25-103.

However, the requirements for establishing an attested will must be read together and construed to permit establishment of the will by any legally admissible evidence or requisite facts in order that the testator’s wishes may not be thwarted by straightlaced construction of statutory language where there is no indication of fraud, deception, imposition, or undue influence. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983).

Foreign execution: A will executed outside this state in compliance with Arkansas law or a written will executed outside this state in a manner prescribed by the law of the place of its execution or by the law of the testator’s domicile at the time of its execution shall have the same force and effect in this state as if executed in this state.  28-25-105.

However, proof of valid execution of a will executed outside the state is referable to Arkansas’ statutes if the proponent seeks to have the will initially probated in Arkansas, and on questions of the burden of proof, the law of the forum governs. Warner v. Warner, 14 Ark. App. 257, 687 S.W.2d 856 (1985).

Affidavit of attesting witness: Any attesting witness to a will may make and sign an affidavit before any officer authorized to administer oaths in this state or in any other state stating such facts as he or she would be required to testify to in an uncontested probate proceeding concerning the will.

The attesting witness may make and sign the affidavit at any time, either:
(1)  On his own initiative; or
(2)  At the request of the testator; or
(3)  After the testator’s death, at the request of the executor or of any other person interested.

The affidavit shall be written on the will, or, if that is impracticable, it shall be securely affixed to the will or to a true copy of the will by the officer administering the oath.

If the probate of the will is uncontested, the affidavit may be accepted by the circuit court with the same effect as if the testimony of the witness had been taken before the court.  28-25-106.

Incorporation of writing by reference: Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, securities, and property used in trade or business.

To be admissible under this subsection as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by him or her and must describe the items and devisees with reasonable certainty.

The writing may be referred to as one to be in existence at the time of the testator’s death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the dispositions made by the will.

Further, in Jones v. Ellison, 70 Ark. App. 162, 15 S.W.3d 710 (2000).even a  signed handwritten note found in the decedent’s jewelry box, which stated, “I want Vernita Ellison to have these items and [my dog],” was properly admitted as part of her will.

Deposit of will with court in testator’s lifetime – Disposition: Deposit of Will. A will may be deposited by the person making it, or by some person for him or her, with the circuit court of the county of his or her residence, to be safely kept until delivered or disposed of as provided in this section. On being paid the fee of two dollars ($2.00), the clerk of the court shall receive and keep the will and give a certificate of deposit for it.

How Enclosed. Every will intended to be deposited as provided in subsection (a) of this section shall be enclosed in a sealed wrapper, which shall have endorsed thereon “Will of,” followed by the name of the testator. The clerk of the court shall endorse thereon the day when and the person by whom it was delivered. The wrapper shall also be endorsed with the name of the person to whom the will is to be delivered after the death of the testator. It shall not be opened or read until delivered to a person entitled to receive it, or otherwise disposed of as provided in this section.

To Whom Delivered. During the lifetime of the testator, the will shall be delivered only to him or her, or to some person authorized by him or her by an order in writing duly signed by him or her and acknowledged before an officer authorized to administer oaths or attested by the signatures of two (2) persons competent to witness the will. After the testator’s death, the clerk shall deliver the will to the person named in the endorsement on the wrapper of the will if that person requests the will either in person or in writing. If the request is in person, the clerk shall require proof of identification before delivering the will and if the is in writing, the clerk shall require an affidavit of the person requesting the will.

When Will to Be Opened. If the will is not delivered to a person named in the endorsement on the wrapper, it shall be publicly opened in the court within thirty (30) days after notice of the testator’s death, and be retained by the court until offered for probate.

Notice shall be given to the executor, if any, named therein and to such other persons as the court may designate. If the proper venue is in another court, the will shall be transmitted to such court, but, before such transmission, a true copy shall be made and retained in the court in which the will was deposited.  28-25-108.

Revocation of wills: A will or any part thereof is revoked:
(1) By a subsequent will which revokes the prior will or part expressly or by inconsistency; or

(2) By being burned, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in the testator’s presence and by the testator’s direction.

If, after making a will, the testator is divorced or the marriage of the testator is annulled, all provisions in the will in favor of the testator’s spouse so divorced are revoked. With these exceptions, no will or any part thereof shall be revoked by any change in the circumstances, condition, or marital status of the testator; subject, however, to the provisions of § 28-39-401. When there has been a partial revocation, reattestation of the remainder of the will shall not be required.  28-25-109.

Contracts affecting the devise of property: A valid agreement made by a testator to convey property devised in a will previously made shall not revoke the previous devise, but the property shall pass by the will subject to the same remedies on the agreement against the devisee as might have been enforced against the decedent if he or she had survived.

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after June 17, 1981, can be established only by:

(A) Provisions of a will stating material provisions of the contract; or
(B)  An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
(C)  A writing signed by the decedent evidencing the contract

The execution of a reciprocal or mutual will does not create a presumption of a contract not to revoke the will.  28-24-101.

Inside Arkansas Last Will and Testament Law