It has been estimated that well over 1/2 of all Americans do not have a will. I personally know many attorneys that do not even have a will, even though virtually every Arkansas lawyer passed a bar examination covering wills and trusts and more than likely also took a decedents’ estates class in law school. Whether because of not wanting to confront the inevitable (death), procrastination, or other factors, drafting a will is simply not high on the list of priorities for a large percentage of people.
A primary reason why people do have a will, however, is to have direction and control as to whom their property will be distributed after their death. Dying without a will is called dying “intestate,” and the intestacy laws of the State of Arkansas set forth a rather strict statutory scheme detailing how a person’s property will be divied up (to children, descendants of children, surviving spouse, parents of the decedent, etc.). If a person does have a will, but then validly revokes it without ever executing a new one, then that person will “die intestate” as well.
That is what happened in the recent appeal of Heirs of F.D. Goza, Jr., et al. v. Estate of William E. Potts, Deceased, CA 09-235 (February 17, 2010). Specifically, this was a probate case in which the former in-laws of the decedent, Mr. Potts, were attempting to take their shares as beneficiaries of a 1989 will which, the estate asserted, was revoked sometime between 2002 and Mr. Potts’ 2006 death. The appellants, relatives of Mr. Potts’ deceased wife, Ms. Goza, argued that Mr. Potts lacked testamentary capacity and was under insane delusions when he revoked his will. The trial court disagreed, ruled that Mr. Potts died intestate (meaning that Mr. Potts’ property amounting to several hundred thousand dollars went to persons other than the appellants), and the Arkansas Court of Appeals affirmed.
The facts and circumstances surrounding Mr. Potts’ revocation were interesting to say the least, and involved Mr. Potts marking “void” over each paragraph, writing “bastard” and “get nothing” on the will, applying Liquid Paper over the names of the beneficiaries, and later shredding the document in front of witnesses. There were tales of alleged affairs and “wife stealing,” temper tantrums, and other curious claims, but in the end the Court held that ”the evidence clearly showed that Bill was an irascible, angry, suspicious, controlling, profane, and difficult man for most of his adult life; however, we cannot say that the trial court erred in refusing to find that he labored under insane delusions.”
The lesson learned from this case is that not only must a testator have the capacity to execute a will (the ability to understand the effects if executed), the testator much also have the same capacity to later revoke that will after it has been executed. As the Court held, “complete sanity in a medical sense is not essential to testamentary capacity, provided power to think rationally exists.” Given the steep standard for proving lack of capacity by a testator, contesting a will (or, in this case, a will revocation) can be a difficult task in the absence of very persuasive evidence.
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.
