Contesting a Will or Trust in Arkansas

Posted: March 3, 2022

Challenging a will or trust in Arkansas is never easy. These disputes can cause stress, uncertainty, and family conflict. But if you believe a loved one’s true wishes are not being respected, Arkansas law does give you a path to contest a will or trust.

This guide explains who can contest a will or trust in Arkansas, the legal grounds for doing so, key deadlines, and recent Arkansas cases that show how courts approach these disputes. If you have concerns about the validity of a will or trust, you should speak with one of our probate attorneys featured on this page.

Who Can Contest a Will or Trust in Arkansas?

Generally, only an “interested person” has standing to bring a challenge. Under Arkansas probate statutes, this may include:

• Heirs at law (those who would inherit if no will existed)
• Beneficiaries named in a will or trust
• A surviving spouse
• Creditors of the estate
• Fiduciaries or anyone with a property interest or claim against the estate

If you fall into one of these categories, you may have standing — but you must also have valid legal grounds for your contest.

Legal Grounds for Contesting a Will or Trust 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 legal 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 or trust 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 have two disinterested witnesses.  Each witness must either see the decedent sign the will or be told by the decedent that the signature on the will is valid. Conversely, trusts are not required to be witnessed. Arkansas does recognize handwritten (holographic) wills without attesting witnesses, if the entire will and signature are in the testator’s handwriting and later proven by three credible disinterested witnesses to the handwriting.

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.

Deadlines

Depending on whether notice has been properly given, objections may need to be filed at or before the initial probate hearing, or within 3 months of first publication of the probate notice, or (in limited circumstances) within 3 years after admission. Any person interested in contesting a will or trust should at promptly to preserve their rights.

Recent Arkansas Cases

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

In Estate of 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 Estate of 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.

Next Steps

If you believe a will or trust in Arkansas does not reflect your loved one’s true intentions, don’t delay. Strict deadlines apply, and evidence can disappear quickly.

Contact the featured attorneys at McDaniel Wolff, PLLC to speak with an experienced Arkansas will contest lawyer today.