Contesting a Will or Trust in Arkansas

Posted: March 3, 2022

In Arkansas, persons interested in an estate can contest the validity of a will or a trust. A will contest is a legal challenge to the validity of a last will and testament. In Arkansas, an "interested person" can contest a will, meaning someone who would inherit under state law if no will existed, or someone named as a beneficiary in the will itself. You must also have a valid, legal basis for setting aside the will or trust, and be able to provide a court with enough evidence to support your claim.

This article explores the grounds for contesting a will or trust in Arkansas, the process involved, and important considerations. If you have concerns about the validity of a will or trust, speaking with one of our experienced probate attorneys is the best course of action. We can advise you on your legal options and guide you through the complexities of the will contest process.

Setting Aside a Trust or Will in Arkansas

Generally, there are five types of claims that are recognized by Arkansas courts as valid methods to contest a will or trust. They are:

• A failure to comply with formalities when signing a will;
• A person lacking the requisite mental capacity at the time of signing;
• A person being subject to undue influence at the time of signing;
• The will being signed as a result of fraud or mistake; or
• Forgery

In Arkansas, an individual may challenge the validity of a will when the person making the testamentary device fails to comply with strict procedures required by Arkansas statutes. For example, Arkansas law requires that a will be in writing, signed by the decedent (the deceased individual) and by two witnesses who are disinterested in the decedent's estate.  Each witness must either see the decedent sign the will or be told by the decedent that the signature on the will is valid, and must sign the will in the decedent’s presence and in the presence of the other witness. Conversely, trusts are not required to be witnessed.

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

Another way to challenge a trust or will is to claim that the individual was improperly influenced at the time they signed the document. 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 Litigation 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.