Earlier this month the Arkansas Court of Appeals ruled in an appeal from the Crawford County Circuit Court that the trial judge did not err in denying a motion to dismiss and finding that the statutory formalities for execution of a will had been satisfied. Specifically, in Baxter v. Peters, No. CA 09-594, a dispute arose between the executor of the grandmother’s estate and the grandchildren. The grandmother apparently left nominal gifts of money to the grandchildren and the bulk of her estate to the National Cemetery in Fort Smith, Arkansas. Presumably the grandchildren were hoping for a larger inheritance if the will in question was not deemed to be valid, and in any event a will contest followed.
At trial the probate court heard conflicting testimony on the issue of whether the will was witnessed with the appropriate number of witnesses (the parties did appear to stipulate that the will in question was in fact signed by the grandmother). Questions had been raised since the attorney who prepared the will had apparently been in the habit of sometimes not calling in all of the witnesses when the will was being signed (the attorney’s own son, for example, evidently testified that he practiced law with his father for a few years and that occasionally witnesses would sign wills outside the presence of the testator). Ultimately however, the trial court concluded that the signing of the will had been proven according to the stautory formalities.
While the case is not groundbreaking in the sense that it creates a new rule of law, it is nevertheless instructive because it serves as a careful reminder that testators and their attorneys should be extra careful to ensure that all of the prerequisites for signing a will have been followed (e.g., the will should be in writing, actually signed in front of witnesses, and witnesses should also sign in front of the testator and at their request, etc.). The fact is that circumstances surrounding the signing of wills and trusts can often be suspect, and those who get sloppy about complying with the statutory requirements are proceeding at their peril as—many years later—estate, trust and probate litigation can ensue long after their deaths.
Matt House can be contacted by telephone at 501-372-6555, by e-mail at mhouse@jamesandhouse.com, by facsimile at 501-372-6333, or by regular mail at James, Fink & House, P.A., Post Office Box 3585, Little Rock, Arkansas 72203.
