Ark. Code Ann. § 28-25-103 (2020)

Research References

Ark. L. Rev.

Andrew L. Lawson, “Body” Building: Expanding Arkansas's Standard for Holographic Wills, 71 Ark. L. Rev. 917 (2019).

U. Ark. Little Rock L.J.

Note, Validity of Signature for Attested Wills, 4 U. Ark. Little Rock L.J. 139.

Case Notes

In General.

The purpose of the law relating to the execution of wills is to protect testamentary conveyances against fraud and deception and not to impede them by technicalities. Hanel v. Springle, 237 Ark. 356, 372 S.W.2d 822 (1963).

Construction.

The requirements for establishing an attested will must be read together and construed to permit establishment of the will by any legally admissible evidence or requisite facts in order that the testatrix's wishes may not be thwarted by straightlaced construction of statutory language where there is no indication of fraud, deception, imposition, or undue influence. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983).

Where there is no indication of fraud, deception, undue influence, or imposition, a court may avoid a strict technical construction of the statutory requirements in order to give effect to the testator's wishes. Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985).

This section is mandatory in order to validate a nonholographic will. Shamoon v. Tombridge, 291 Ark. 222, 723 S.W.2d 827 (1987).

Acknowledgment by Testator.

Testator's statement to attesting witness that the instrument was his will raises presumption, in the absence of proof to the contrary, that testator's signature was on the will and it was an acknowledgment to testator's subscription to the will in compliance with statutory requirements. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

If, without referring to instrument as his will, testator produces it with his signature visible, and requests witness to sign it, this is a sufficient acknowledgment. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

Testator may acknowledge his signature by his acts and gestures, without making any express acknowledgment of the signature in words. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

The fact of publication can be inferred from all of the circumstances attending the execution of the will; a testator may acknowledge his signature by acts and gestures without expressing it in words. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983).

Once the signing of a will is proven by two attesting witnesses, and there is no suggestion of fraud or undue influence, there is a presumption that the testator declared to the attesting witnesses that the instrument was his will; and that he either signed in front of them or acknowledged to them his signature on the instrument; and that the attesting witnesses signed at the request of and in the presence of the testator. In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991).

Trial court did not err in finding substantial compliance with the requirement of declaring one's will to the witnesses where, even had the decedent not declared to one of the witnesses that it was her last will and testament, nor had she specifically asked either witness to sign it, the witness was standing by as the handwritten document was read back to the decedent, and the witness understood the document to have been the decedent's last will and testament. Fischer v. Kinzalow, 88 Ark. App. 307, 198 S.W.3d 555 (2004).

Attestation by Witnesses.

Previously it was held that it was not necessary that witnesses to a will subscribe in the presence, actual or constructive, of the testator. Abraham v. Wilkins, 17 Ark. 292 (1856) (decision under prior law).

An attesting witness to a will may subscribe by mark, although the person who writes the name fails to sign his name as a witness in fact. Davis v. Semmes, 51 Ark. 48, 9 S.W. 434 (1888) (decision under prior law).

A will was duly executed where it was subscribed in the presence of one attesting witness and then taken by the testator to a justice of the peace to whom he pointed out his signature, declared the writing to be his will, and procured the justice to sign and certify the will in his official capacity. The certificate, though superfluous, did not vitiate the attestation by the justice. Payne v. Payne, 54 Ark. 415, 16 S.W. 1 (1891) (decision under prior law).

A will cannot be admitted to probate where the signature of the testator is attested by only one witness. Johnson v. Hinton, 130 Ark. 394, 197 S.W. 706 (1917) (decision under prior law).

A will signed by a mark in the presence of justice of peace who did not write his own name as witness and by two witnesses out of the presence of the testator and not at her request was held invalid. Graves v. Bowles, 193 Ark. 546, 101 S.W.2d 176 (1937) (decision under prior law).

A will signed by one witness who was a total stranger to testator and to other witness several days after it was executed by testator and signed by the other witness was rejected as not having been properly attested. Hendry v. Wilson, 202 Ark. 580, 151 S.W.2d 683 (1941) (decision under prior law).

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).

There has never been any requirement in Arkansas that the two witnesses to a will sign in the presence of each other, and this section has not changed the law in that respect. Coleman v. Walls, 241 Ark. 842, 410 S.W.2d 749 (1967); Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988).

Although the will probably qualified as a holographic will, since it was signed at the end by the testator, in the presence of two attesting witnesses as required by this section, the evidence was sufficient to establish the will as an attested will. Walpole v. Lewis, 254 Ark. 89, 492 S.W.2d 410 (1973).

Where the testator signs his will with an “X”, this section requires a minimum of three subscribing witnesses to make the will in question valid. Shamoon v. Tombridge, 291 Ark. 222, 723 S.W.2d 827 (1987).

Statutory formalities specifically required the testatrix, who signed by a mark, to have a witness who signed the document attesting to her mark and two attesting witnesses to sign at end of the instrument to constitute a validly executed will; although three witnesses attested to the execution of the will, the will did not refer to any witness as being a special witness to the mark, and therefore, the will was invalid because the writing of the testatrix's name by the witness to the mark was not done in the presence of two attesting witnesses. Smith v. Wharton, 349 Ark. 351, 78 S.W.3d 79 (2002).

Witness was within the range of the testator's senses while in an adjacent room with the door open to the testatrix's bedroom; thus, he was in the presence of the testator at the time he subscribed his name to the testatrix's will. Conner v. Donahoo, 85 Ark. App. 43, 145 S.W.3d 395 (2004).

Attorney as Witness.

An attorney who drafted a 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).

Blind Persons.

Where a blind person held the pen and another guided her hand in signing her will, the signature was the act of the testator, and it was not necessary for the person guiding her hand to sign the will as an attesting witness to the signature. Coleman v. Walls, 241 Ark. 842, 410 S.W.2d 749 (1967).

A will signed by blind person by mark with assistance from the sole beneficiary and witnessed by two other people is valid. Patrick v. Rankin, 256 Ark. 310, 506 S.W.2d 853 (1974).

Burden of Proof.

Production of a written paper purporting to be the will of a deceased person which is rational on its face, and which is proved to have been executed and witnessed in accordance with statutory requirements makes a prima facie case and devolves upon the contestants the onus of showing the testator's incompetency. Gray v. Fulton, 205 Ark. 675, 170 S.W.2d 384 (1943) (decision under prior law).

When surviving son offered the will for probate, he had the burden of proving the genuineness of the signatures. Where he made such proof and the will was admitted to probate, the appellants who sought to contest the will within the six-month period had the burden of sustaining the contest on the alleged ground that the signatures to the will were a forgery. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

Declaration of Testator.

The testator is not required to use any particular words in declaring an instrument to be his last will and testament. Evans v. Evans, 193 Ark. 585, 101 S.W.2d 435 (1937) (decision under prior law).

Evidence Generally.

Evidence supported finding of probate court that will offered for probate was executed in accordance with this section. Edwards v. Knowles, 225 Ark. 1024, 287 S.W.2d 449 (1956); Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988).

Parol evidence may not be introduced by the witness to a testator's mark to supply the deficiency of the required additional witness' signature. Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963).

Evidence of Testamentary Intent.

Where a written instrument was executed as a will but only one witness signed it and the instrument, along with two letters written by the deceased to his wife, was offered for probate on the ground that purported typewritten will became part of a valid will when coupled with the letters written by the deceased in his own handwriting to his wife, court erred in overruling demurrer to petition to probate where there was no evidence whatever to the effect that he intended that either the letter should constitute a will or that it be used in connection with any other document or instrument so as to constitute a will. Smith v. Nelson, 227 Ark. 512, 299 S.W.2d 645 (1957).

It is not necessary that deceased specifically request the witnesses to sign his will. Thus where a deceased's actions showed that he knew he was making a will, that he was asked if he wanted any of his property to go to a certain person and he explained why he did not, and that he signed the instrument in front of the witnesses and permitted them to sign as witnesses, the statutory provisions were substantially complied with. Hanel v. Springle, 237 Ark. 356, 372 S.W.2d 822 (1963).

Where a document sets forth no words of a dispositive nature, it is defective on its face because it lacks the required intent to make a will, and extrinsic evidence is not admissible to prove the necessary intent. Dunn v. Means, 304 Ark. 473, 803 S.W.2d 542 (1991).

Failure to Comply.

Where a testator's name is signed to a will by his direction and he does nothing more thereby adopting such signature as his subscription, the person so signing for the testator must also write his own name as a witness and state that he signed the testator's name at his request. Statutory provisions did not apply, however, where the testator signed himself by making his mark. In re Will of Cornelius, 14 Ark. 675 (1854); Guthrie v. Price, 23 Ark. 396 (1861) (decision under prior law).

Where testator's name is signed by another at his request and the testator then signs by mark and the other person signing testator's name does not subscribe his own name as required, it is necessary that the genuineness of the signature by mark be established by other means. Hightower v. Hightower, 128 Ark. 95, 193 S.W. 518 (1917) (decision under prior law).

Holographic Will.

Where the decedent's unaltered, handwritten will, which was signed by him and witnessed by one witness was found to be a holographic will which was valid pursuant to § 28-25-104, it was not necessary to further test the will's validity as an attested will under this section since a holographic will can satisfy the requirements of both sections. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981).

Mandatory Nature.

The validity of a will depends on compliance with statutory requirements rather than on the good memory of one of the witnesses. Evans v. Evans, 193 Ark. 585, 101 S.W.2d 435 (1937) (decision under prior law).

Notary as Witness.

Where will was signed by decedent with an “X” and attested by two witnesses and a proof of will was acknowledged by a notary public, the notary public's signature on the proof of will form did not amount to a third signature. Shamoon v. Tombridge, 291 Ark. 222, 723 S.W.2d 827 (1987).

Presumption of Due Execution.

Although no presumption of due execution of a will arises from the mere production of an instrument purporting to be a will, if it appears to have been duly executed and the attestation is established by the witnesses to its execution, although they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with the requirements of law including those as to attestation in the presence of the testator and affixing the testator's signature prior to those of the witnesses. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983); Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988).

Proof of Execution.

Execution of a will may be sufficiently proved where one witness testifies positively to the requisites of execution, though another does not recall some of the requisites, especially where testimony is given several years after execution of the will. Evans v. Evans, 193 Ark. 585, 101 S.W.2d 435 (1937) (decision under prior law).

No presumption of due execution arises from mere production of an instrument purporting to be a last will and testament, but where the instrument appears to have been duly executed as a will, and the attestation is established by proof of the handwriting of the witnesses or otherwise, although their testimony is not available, or they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with all the requirements of law. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

Publication.

The requirement that the testator declare the instrument to be a will is called publication; it is not required that a testator recite precisely the words “this is my will,” although that is the preferred practice; rather, publication can be inferred from actions and circumstances. Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985).

Republication.

A codicil, duly executed, will operate as a republication of an earlier will although the earlier will was inoperative or imperfectly executed or attested. Rogers v. Agricola, 176 Ark. 287, 3 S.W.2d 26 (1928) (decision under prior law).

Request of Testator.

It is not necessary that each witness should prove that both signed at the request of the testator. Rogers v. Diamond, 13 Ark. 474 (1853) (decision under prior law).

Each of the attesting witnesses must sign his name as a witness at the request of the testator; however, such a request may be inferred from the attendant circumstances, by signs, or by gestures, as well as words, as by the testator desiring the witness to be sent for to attest the execution of the will or from a request made to such witnesses by another person in the presence of the testator. Rogers v. Diamond, 13 Ark. 474 (1853) (decision under prior law).

Signature Generally.

Will was signed by testator and duly witnessed according to law where testimony by witnesses showed that testator requested witnesses for her will and duly signed the will in their presence and that witnesses then signed the will as witnesses in presence of testator. Meek v. Bledsoe, 221 Ark. 395, 253 S.W.2d 369 (1952).

Where the testator and both attesting witnesses were dead, all the contestants had to do was to prove that any one of the three signatures was a forgery in order to defeat probate since a valid will, other than a holographic one, must have two witnesses. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

It is essential to due execution of a will that it be signed or subscribed by the number of witnesses required by law governing the particular will being made, and subscription by fewer renders the transaction a nullity. Ash v. Morgan, 232 Ark. 602, 339 S.W.2d 309 (1960).

While substantial compliance with the procedure in subdivision (b)(5) of this section has been held sufficient in some situations, it has never been extended to allow a witness to attest a will before the testator signs it and who in fact never sees the testator sign. Burns v. Adamson, 313 Ark. 281, 854 S.W.2d 723 (1993).

Signature of Testator.

A testator may sign his will by an abbreviation of his full name or merely by initials. Cartwright v. Cartwright, 158 Ark. 278, 250 S.W. 11 (1923) (decision under prior law).

Where contestants, in a proceeding to probate a will, denied that deceased signed the will, it was competent for them to prove that she did not sign because she could not write. Watts v. Tidwell, 178 Ark. 951, 12 S.W.2d 896 (1929) (decision under prior law).

The purpose of the requirement that subscription be at end of a will is to prevent fraud. Weems v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951) (decision under prior law).

The signature of the testator at the end of a holographic will is not requisite to its validity. Smith v. MacDonald, 252 Ark. 931, 481 S.W.2d 741 (1972).

Where the testator places his signature in the attestation clause because he believes that it belongs there and with the requisite testamentary intent, it constitutes a sufficient compliance with this section requiring the signature to be at the end. Scritchfield v. Loyd, 267 Ark. 24, 589 S.W.2d 557 (1979).

When a testator presents a will to a witness, the presumption is, in the absence of proof to the contrary, that the testator's signature is on the will; where there is clear evidence to the contrary, no presumption is permissible. Burns v. Adamson, 313 Ark. 281, 854 S.W.2d 723 (1993).

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).

Where a will is signed by testator's mark, it is mandatory that a minimum of three signatures be attached, one to witness the testator's mark and two to attest the will. Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963).

Where a will is signed by testator's mark, the mark must be witnessed by the signature of the party who wrote the testator's name and the signatures of two attending witnesses. Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963).

One who witnesses the mark of a testator cannot also sign as a witness to the will. Priola v. Priola, 237 Ark. 798, 377 S.W.2d 29 (Ark. 1964).

Where testator made an “X” on his will and the drafting attorney then wrote testator's name next to the mark, after which two other witnesses signed the will as witnesses, the will was properly executed, since this section does not require that the person who writes the name of the testator near his mark must also sign as a witness to the signature or as a witness to the will itself. Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981).

Statutory Policy.

The policy of statutory requirements is to guard against frauds in the execution of wills. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

Subsequent Ex Parte Affidavit Inadmissible.

Where a testator signed a will by his mark and the party who signed his name failed to attest the signature by writing his own name as witness, an ex parte affidavit by the witness that he wrote the deceased's name for him and witnessed the making of his mark by the deceased is inadmissible; there then being no proof of the deceased's signature, the will is not entitled to probate. Hightower v. Hightower, 128 Ark. 95, 193 S.W. 518 (1917) (decision under prior law).

Validity of Execution.

Where neither of the alleged attesting witnesses signed in the presence of the testator, nor in the presence of each other, the will was not validly executed. Ash v. Morgan, 232 Ark. 602, 339 S.W.2d 309 (1960).

Where the record shows that the witnesses understood the paper signed was the will of testator and that he expected and desired them to sign as witnesses, and testator signed will in their presence and they signed as witnesses in the presence of the testator, there was substantial compliance with this section, although the witnesses could not say positively that testator actually said it was his will or that he literally requested them to sign it as witnesses. Hollingsworth v. Hollingsworth, 240 Ark. 582, 401 S.W.2d 555 (1966).

Where both witnesses to the execution of a will were unable to definitely testify that they saw the testator sign the will, but one witness testified that he did not believe that he would have signed the attestation clause unless decedent had signed the will in his presence and the other witness testified that he was “pretty sure” that he had seen decedent sign his name, the will was validly executed under this section. Pennington v. Pennington, 1 Ark. App. 311, 615 S.W.2d 391 (1981).

Where testator went to attorney's office for the specific purpose of making a will and did so and no one questioned the genuineness of her signature and where attorney's secretary and a client witnessed the will, trial court's determination that will was validly executed was not clearly erroneous even though witnesses could not specifically recall seeing testator sign the will. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983).

Will which disinherited a party was valid because all of the elements of proper execution were met under subsections (a), (b), and (c) of this section. Also, testamentary capacity was present because when the will was executed the testatrix comprehended the nature and extent of her property and to whom she was giving it. Foster v. Foster, 2010 Ark. App. 594, 377 S.W.3d 497 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 742 (Oct. 27, 2010), review denied, — Ark. —, — S.W.3d —, 2011 Ark. LEXIS 369 (Ark. Mar. 3, 2011).

Witness to Execution.

A witness signing testator's name may also attest will. Bocquin v. Theurer, 133 Ark. 448, 202 S.W. 845 (1918), superseded by statute as stated in, Priola v. Priola, 237 Ark. 798, 377 S.W.2d 29 (Ark. 1964) (decision under prior law).

Words Following Signature.

A will's validity is not affected by fact that superfluous or useless words follow a signature. Weems v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951) (decision under prior law).

Nontestamentary, nondispositive language appearing below the signature of the maker of a will, will not invalidate the instrument. Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991).

Language appearing after signature on will which instructed two persons to dispense with described personal property of testatrix was administrative in nature, and not dispositive, and therefore there was no violation of subsection (b)(5). Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991).

Cited: Ballard v. Beard, 238 Ark. 459, 382 S.W.2d 593 (1964); Nowak v. Etchieson, 241 Ark. 328, 408 S.W.2d 476 (1966); Warner v. Warner, 14 Ark. App. 257, 687 S.W.2d 856 (1985); Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999).