Ark. Code Ann. § 28-25-102 (2020)
Witnesses
- Any person, eighteen (18) years of age or older, competent to be witness generally in this state may act as attesting witness to a will.
- No will is invalidated because attested by an interested witness, but an interested witness, unless the will is also attested by two (2) qualified disinterested witnesses, shall forfeit so much of the provision therein made for him or her as in the aggregate exceeds in value, as of the date of the testator's death, what he or she would have received had the testator died intestate.
- No attesting witness is interested unless the will gives to him or her some beneficial interest by way of devise.
- An attesting witness, even though interested, may be compelled to testify with respect to the will.
History. Acts 1949, No. 140, § 18; A.S.A. 1947, § 60-402.
Case Notes
Age of Witness.
The requirement that an attesting witness must be 18 years of age or older is unequivocal and leaves no room for judicial interpretation or substantial compliance. Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999).
Attestation.
Where an attestation is dated one month earlier than a will, the will is still valid if there is no dispute that the will was signed by the testator and attested by the witnesses on the same date. Miller v. Mitchell, 224 Ark. 585, 275 S.W.2d 3 (1955).
Attorney.
Although the law firm with which he was associated was named to represent the estate, attorney signing will as one of two attesting witnesses was qualified, no beneficial interest having been devised to him. Rosenbaum v. Cahn, 234 Ark. 290, 351 S.W.2d 857 (1961).
Attorney who drafted will and witnessed it, but who was not named in the will, was competent to testify as an attesting witness. Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).
Beneficiary Not a Witness.
A beneficiary who is not an attesting witness may testify. Strickland v. Smith, 131 Ark. 350, 198 S.W. 690 (1917) (decision under prior law).
Executor as Witness.
The executor of a will, as a rule, is competent as a subscribing witness to its execution, as his interest is derived from the statute and not from the will itself, the word “appointment” referring to some appointment coupled with a beneficial interest. Fontaine v. Fontaine, 169 Ark. 1077, 277 S.W. 867 (1925) (decision under prior law).
Husband and Wife.
Husband who is one of the subscribing witnesses to a will is not disqualified from testifying as to its due execution before the probate court because of the fact that his wife is a legatee, since statute rendering husband or wife incompetent from testifying for or against each other in civil actions does not apply to probate of wills. Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W.2d 321 (1936) (decision under prior law).
Subscribing witness to will whose wife was beneficiary thereunder was competent witness in proceeding to contest the will where wife had previously disclaimed her testamentary bequest and was no longer a party to the suit. Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W.2d 321 (1936) (decision under prior law).
Signed by Mark.
A will is valid as properly executed by substantial compliance with the statutes where the testator signs it with his mark and an unknown person writes the testator's name next to his mark and there are three attesting witnesses. Miller v. Mitchell, 224 Ark. 585, 275 S.W.2d 3 (1955).
Voluntary Release.
One of the necessary subscribing or attesting witnesses to a will who is a beneficiary therein may become competent by voluntarily releasing his bequest. Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W.2d 321 (1936) (decision under prior law).
Cited: Parker v. Parker, 237 Ark. 942, 377 S.W.2d 160 (1964).