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Estate Litigation Update

In Arkansas, an individual can contest the validity of a will or a trust by timely filing a petition with a court. To successfully pursue a will contest you must have legal standing, which generally means you have a personal interest in the outcome of the case as an heir at law or as a named beneficiary of an estate planning device. The next barrier is having a valid, legal basis for setting aside the will or trust, and providing the court with enough evidence to support your claim. This article discusses various claims recognized by Arkansas courts forming a valid basis to contest an individual’s last will and testament or a trust, followed by a summary of recent Arkansas cases involving successful and unsuccessful claims.

Claims Forming a Valid Basis to Contest a Trust or Will in Arkansas

There are generally four types of claims that are recognized by Arkansas courts as valid methods to contest a will or trust. The claims are: (1) a failure to comply with statutory procedures when making a will; (2) a person lacking of mental capacity at the time of signing; (3) a person being subject to undue influence at the time of signing; and (4) the will or trust being produced as a result of fraud or mistake.

In Arkansas, an individual may challenge the validity of a trust or will when the person making the testamentary device fails to comply with strict procedures required by Arkansas statutes. These types of claims are more likely to arise with will contests because more formalities are required to create a will than a trust. For example, Arkansas law requires that a will must be in writing, signed by the testator (the deceased individual) and by two witnesses who are disinterested in the estate.  If the testator is unable to physically sign his name he may make his signature by a mark, or he may direct another party to do it for him.  Each witness must either see the testator sign the will or be told by the testator that the signature on the will is his, and must sign the will in the testator’s presence and in the presence of the other witness.

The next avenue for challenging a trust or will is demonstrating that the deceased individual lacked the requisite mental capacity at the time they signed the estate planning device. Typically, Arkansas courts apply the same standard of mental capacity when reviewing contests to both wills and trusts. Generally, an individual has the requisite mental capacity to make a trust or will if they understand the extent and condition of their property, how they are giving property away, and to whom they will be giving their property. Mental capacity is typically measured as of the time the trust or will is signed, not before or after it was signed.

Another way to challenge a trust or will is to claim that the individual was unduly influenced. Undue influence occurs when an individual uses a position of power over another person to deprive them of their free agency in the disposition of their property when making a will or trust. The influence exerted must be specifically directed toward procuring a trust or will in favor of a particular party. This type of claim is closely related to lack of mental capacity because factors that indicate a lack of mental capacity can also be used to prove undue influence.

Finally, a trust or will can be challenged based on fraud or mistake. This type of claim can arise in a circumstance such as a will or trust that is signed by someone who thinks they are signing some other type of document.

Recent Arkansas Cases

In re Estate of Haverstick, 2021 Ark. 233, 635 S.W.3d 482:

In Haverstick, two sons contested the validity of their father’s will alleging his wife had unduly influenced him to dilute their share of an annuity devised under the will. The Circuit Court found that the will was valid. The Arkansas Court of Appeals upheld this decision, and the case was subsequently appealed to the Arkansas Supreme Court.

The sons claimed that the Circuit Court had erred in finding that the will was valid. More specifically, they claimed the Circuit Court improperly placed the burden of proof on them by finding that their father and his wife did not have a confidential relationship. In analyzing the facts, the Arkansas Supreme Court stated that the couple’s marriage and a power of attorney gave rise to a confidential relationship and found that the lower court clearly erred on this issue. However, the Supreme Court ultimately came to the same result because the same testimony would have been heard, and the testimony supported a finding of no undue influence. The testimony supported a finding that it was the father’s informed decision to change his will, and no evidence of lack of capacity was presented.

In re Estate of Smith, 2020 Ark. App. 113, 597 S.W.3d 65:

In Smith, two sons challenged the validity of their mother’s will alleging that she lacked the requisite mental capacity to execute her will. The Circuit Court agreed with the sons and set aside the will, and the case was appealed. Ultimately, the appellate court upheld the decision to set aside the will because sufficient evidence was presented demonstrating the mother’s declining mental capacity at the time of the will’s execution, and no evidence was presented by the proponents of the will to show she had capacity or that she was not unduly influenced.

Moore v. Sullivan, 2019 Ark. App. 90, 569 S.W.3d 917:

In Moore, a son and daughter challenged the validity of their father’s will alleging he lacked the requisite mental capacity to execute his will. The Circuit Court found that the will was valid, and the case was appealed.

The Arkansas Court of Appeals analyzed the daughter’s testimony heard by the lower court which demonstrated that her father had begun having trouble remembering things, recognizing people, and frequently became confused before he executed the will. However, his wife and another daughter (who received a slightly increased distribution under the challenged will) testified that the father did not have issues recognizing people or remembering things, but he did sometimes have issues hearing things and often changed the subject in conversations because of this. Additionally, several other parties testified that the father’s capacity had not noticeably declined. The appellate court recognized that there was some evidence for lack of mental capacity, but there was also evidence indicating he had capacity when he signed the will. Ultimately, the Court of Appeals gave deference to the lower court’s weighing of the witnesses’ credibility, and upheld the decision.

Contact Our Probate Attorneys

Our estate planning and probate attorneys benefit from decades of experience in handling contests of wills and trusts. If you need assistance with an estate or trust litigation matter, contact us to see how we can help.

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