Ark. Code Ann. § 28-40-113 (2020)

Research References

Ark. L. Notes.

Sampson, Burden Shifting in Will Contest Cases: An Examination and a Proposal that the Arkansas Supreme Court Reconcile Arkansas Rules of Evidence Rule 301 with its Undue Influence Case Law, 1996 Ark. L. Notes 87.

Ark. L. Rev.

Probate Code Amendments, 5 Ark. L. Rev. 377. Jackson v. Braden, 290 Ark. 117, 717 S.W.2d 206 (1986).

Case Notes

Burden of Proof.

When surviving son offered a will for probate, he had the burden of proving the genuineness of the signatures; he made such proof, and the will was admitted to probate. When other persons sought to contest the will, they 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).

Substantial evidence supported a probate court finding that testator's first wife, who claimed a dower interest in estate, had not carried the burden of proving invalidity of second marriage merely by showing validity of her marriage to deceased and the absence of any court record of divorce in any one of three counties of her state, as valid divorce could have been granted elsewhere. Miller v. Miller, 237 Ark. 66, 371 S.W.2d 511 (1963).

The party contesting the validity of the will has the burden of proving by the preponderance of the evidence that the testator lacked mental capacity at the time the will was executed or that the testator acted under undue influence. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996).

Consolidation of Contests.

Where five separate contests of a will were appealed from the probate court to the circuit court, they were properly consolidated for trial as a single case. First Nat'l Bank v. Ary, 180 Ark. 1084, 24 S.W.2d 336 (1930) (decision under prior law).

Construction and Interpretation.

If the instrument offered was a will, it was to be admitted to probate, and its construction and interpretation were to be left to other courts having jurisdiction of the matter. Powell v. Hayes, 176 Ark. 660, 3 S.W.2d 974 (1928) (decision under prior law).

Contest Barred by Limitations.

Where no attack was made on a will within six months after it was duly probated and notice thereof published, the plaintiff was barred by limitations from contesting it. Montgomery v. Blankenship, 217 Ark. 357, 230 S.W.2d 51, 21 A.L.R.2d 212 (1950) (decision under prior law).

Full Faith and Credit.

The will of a person who had a domicil in another state in which the will was probated, insofar as it related to the devolution of either real or personal property in this state, could be contested, provided that full faith and credit had to be given by each state to the public acts, records, and judicial proceedings of every other state. Schweitzer v. Bean, 154 Ark. 228, 242 S.W. 63 (1922) (decision under prior law).

Grounds for Contest.

A party interested in the probate of the will of a nonresident could contest the probate upon the grounds of incapacity or undue influence. Selle v. Rapp, 143 Ark. 192, 220 S.W. 662, 13 A.L.R. 494 (1920) (decision under prior law).

Pursuant to subsection (b), if a will contest was on any ground other than that another will had been discovered, and if the will contestant had been given proper notice, the contestant's grounds for objection had to be filed at or prior to the time of the hearing on the petition for probate; this section does not allow a party to make an oral objection to a will such that, while all the beneficiaries may not have been properly served, they had constructive and actual notice of the probating of the will. West v. Williams, 355 Ark. 148, 133 S.W.3d 388 (2003).

Interested Persons.

While, in a will contest, it would have been better practice to determine, as a preliminary question, the interest of any contestant whose right to sue as heir was disputed, the court could, in its discretion, submit to the jury this question, together with the main issue. Flowers v. Flowers, 74 Ark. 212, 85 S.W. 242 (1905) (decision under prior law).

Brothers and sisters of testator, who left surviving him heir in person of adopted son, were not “interested” persons, entitled to sue to set aside testator's will. Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733 (1951).

Just any collateral heir is not necessarily an “interested person” with a right to contest the probate of a will under this section. Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 824 (1976).

Remote heirs, decedent's sister, nieces and nephew, were not “interested persons” entitled to contest a will under subsection (a) because they would not have taken by intestate succession at that time since decedent's two daughters were were still living. Hardie v. Estate of Davis, 312 Ark. 189, 848 S.W.2d 417 (1993).

A daughter of the decedent, who received an equal share under the will at issue, had standing to question the validity of the will, notwithstanding that her interest was not detrimentally affected by the will. Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998).

Jurisdiction.

Trial court had authority to consider a challenge to decedent's will subsequent to a hearing at which it orally announced its decision to admit a purported will to probate because no written order had been entered and filed of record from the prior hearing; subsection (b) of this section was not applicable because the trial court never lost subject-matter jurisdiction and was free to hear additional evidence and to alter its decision upon further consideration of the facts and circumstances surrounding the will. Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003), overruled in part, West v. Williams, 355 Ark. 148, 133 S.W.3d 388 (2003).

Petition by Minors.

A petition by a minor to set aside the probate of a will filed after statutory period had expired was properly dismissed, since no exception in favor of minors is provided for by this section. Brown v. Hawkins, 219 Ark. 239, 240 S.W.2d 863 (1951).

Pretermitted Children.

The limitation contained in subsection (b)(2) of this section does not apply to an action by pretermitted children against the sole devisee of their father's will for partition of the real estate devised in the will. Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970).

Review of Circuit Court Decision.

In a will contest pursuant to this section, admission of a testator's will to probate was proper because preponderance of the evidence supported the circuit court's finding that both sons had confidential relationships with the testator, that the testator had testamentary capacity when he executed his will, and that the will was not the result of undue influence. Breckenridge v. Breckenridge, 2010 Ark. App. 277, 375 S.W.3d 651 (2010).

Review of Probate Court Decision.

A court of equity was not authorized to review the decision of the probate court upon the probate of a will where there had been no appeal to the circuit court. Mitchell v. Rogers, 40 Ark. 91 (1882) (decision under prior law).

After a probate court has probated a will, necessarily putting testamentary capacity in issue, equity has no jurisdiction to review this capacity, even though no jurisdictional objection is made, unless there is extrinsic fraud upon the probate court because the Arkansas Constitution places exclusive probate jurisdiction in the probate court. O'Dell v. Newton, 224 Ark. 541, 275 S.W.2d 453 (1955).

Due deference will be given to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996).

Review of Circuit Court Decision.

Trial court erred in finding that decedent's spouse and brother did not procure the will, and, as such, they were obligated to rebut the presumption of undue influence, however, nothing in the record suggested that their influence operated to override the decedent's discretion or destroy the decedent's free will, and a medical doctor and other disinterested witnesses testified that the decedent was of sound mind when decedent executed his will; thus, the trial court's error was harmless. In re Estate of Garrett, 81 Ark. App. 212, 100 S.W.3d 72 (2003).

Setting Aside for Fraud.

A judgment admitting a will to probate could not be set aside for fraud on ground that judgment was based on copy instead of original will, since representation was not extrinsic. Blankenship v. Montgomery, 218 Ark. 864, 239 S.W.2d 272 (1951).

A judgment admitting a will to probate could not be set aside on ground of fraud based on fact that counsel for proponents of will persuaded court to appoint executors without bond, since this was an intrinsic matter. Blankenship v. Montgomery, 218 Ark. 864, 239 S.W.2d 272 (1951).

A judgment admitting a will to probate could not be set aside for fraud on ground that mental incapacity of deceased was concealed from the court, since concealment related to intrinsic matter and did not constitute extrinsic fraud. Blankenship v. Montgomery, 218 Ark. 864, 239 S.W.2d 272 (1951).

A judgment admitting a will to probate could not be set aside on the ground that counsel for proponents had concealed from the court the fact that a “living trust” was incorporated in will where reference to trust appeared on the face of the instrument, since fraud alleged was intrinsic. Blankenship v. Montgomery, 218 Ark. 864, 239 S.W.2d 272 (1951).

Timely Filing.

Where brothers of testator were not given notice of the admission of the will to probate in the manner required by § 28-40-111, but were mentioned as heirs in the petition to probate, their petition to set aside the will filed six months and 13 days after the admission of the will to probate was filed in time under subsection (b)(2)(C) of this section. Jones v. Jones, 234 Ark. 163, 350 S.W.2d 673 (1961) (decision prior to 1985 amendment).

Where petition to contest a will reached the county clerk and, though not filed separately, was placed in the case file of deceased's estate within the statutory period for filing, the petition was deemed timely filed under this section. Edwards v. Brimm, 236 Ark. 588, 367 S.W.2d 433 (1963).

Legal malpractice suit based on an attorney's handling of an estate was not ripe for adjudication because a challenge could still be raised in the probate proceedings since the longer limitations period for challenges based on discovery of another will applied, even if the challenge was supported by a copy of the will. Kennedy v. Ferguson, 679 F.3d 998 (8th Cir. 2012).

Triggered No Contest Clause.

Trial court did not err in finding that appellant contested the will, and although appellant claimed that she never made a written objection to the will under subsection (a) of this section and thus she could not have challenged the will, the court disagreed; by submitting a second will for probate drafted a week after the first will, in appellant's handwriting and leaving the bulk of the estate to herself, appellant clearly challenged the validity of the first will and sufficient evidence supported the conclusion that appellant was not acting in good faith when she offered that will for probate, such that her actions triggered the no-contest clause in the will. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007).

Cited: Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970); Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975); Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987); Spicer v. Estate of Spicer, 55 Ark. App. 267, 935 S.W.2d 576 (1996).