Ark. Code Ann. § 28-40-117 (2020)

Research References

Ark. L. Rev.

Proof of Wills, 9 Ark. L. Rev. 394.

Wills — Proof of Testamentary Intent in Holographic Codicils, 25 Ark. L. Rev. 376.

Wills — Validity of Signature for Holographic Wills, 28 Ark. L. Rev. 521.

Case Notes

Construction.

Subsections (a)-(c) of this section and subsection (d) of this section are not contradictory, but should be read together in determining admissible evidence in a suit to probate will. In re Altheimer's Estate, 221 Ark. 941, 256 S.W.2d 719 (1953).

Acknowledgment by Testator.

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).

Attorney as Attesting 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).

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 appellants 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).

Evidence of Forgery.

Although testimony as to signature on a will was conflicting where enlarged photographs of the admitted signature of the decedent made it apparent that the signature on the will was a forgery, the court properly refused to admit the will to probate. Thomas v. Barnett, 228 Ark. 658, 310 S.W.2d 248 (1958).

Where 11 witnesses stated that they were familiar with the signature and handwriting of the deceased and expressed their opinion that a proffered will was written entirely in the handwriting of the deceased, but court-appointed expert declared the will a forgery, the court's holding that the will was forged was not against the preponderance of the evidence. Wilson v. Kemp, 7 Ark. App. 44, 644 S.W.2d 306 (1982).

Extrinsic Evidence.

Extrinsic evidence may be admitted when it is necessary to fortify the finding of existence of testamentary intent. Chambers v. Younes, 240 Ark. 428, 399 S.W.2d 655 (1966).

Holographic Wills.

A credible witness to a holographic will is one who is competent and who is worthy of belief. Sanders v. Abernathy, 221 Ark. 407, 253 S.W.2d 351 (1952).

A trial court erred in denying probate of a holographic will on the ground that evidence presented did not meet requirements necessary to establish holographic will where four renters from deceased and two banking officials testified that will was in handwriting of the deceased. Sanders v. Abernathy, 221 Ark. 407, 253 S.W.2d 351 (1952).

Members of a church were competent witnesses to establish holographic will benefiting the church where no gain from the will would inure to the members individually under the will. Barnard v. Methodist Church, 226 Ark. 144, 288 S.W.2d 595 (1956).

Lost or Destroyed Wills.

Before a court will establish a will as being lost or destroyed, it must be shown that the will was duly executed. Porter v. Sheffield, 212 Ark. 1015, 208 S.W.2d 999 (1948) (decision under prior law).

One Attesting Witness.

Where only one attesting witness to will can be produced, it is permissible to introduce testimony on the authenticity of the handwriting of other attesting witness. In re Altheimer's Estate, 221 Ark. 941, 256 S.W.2d 719 (1953).

Where a witness to a will testified that she witnessed the will at the request of the testator and in the presence of the other attesting witness who was then deceased, but whose signature was identified by his son and his widow, this testimony met the requirement of this section for the testimony of “credible disinterested witnesses” and thus the will was sustained as an attested will. Walpole v. Lewis, 254 Ark. 89, 492 S.W.2d 410 (1973).

The trial court erred in admitting a will to probate because the proponent failed to prove the will by either two attesting witnesses or two credible disinterested witnesses, and there was no showing that any diligence was exercised in procuring the testimony of one of the attesting witnesses. Carter v. Meek, 70 Ark. App. 447, 20 S.W.3d 417 (2000).

Proof of Execution.

Proper execution of a will to be probated could be proven by all or any one of the subscribing witnesses, or by only one witness who testified positively to the request of its execution and another witness did not recollect or denied some of the requests. Leister v. Chitwood, 216 Ark. 418, 225 S.W.2d 936 (1950) (decision under prior law).

The requirements outlined in subsection (a)(1) for proving an attested will by the testimony of two attesting witnesses were satisfied where (1) the two attesting witnesses were credible disinterested witnesses, (2) each witness testified that his or her signature was on the will as an attesting witnesses, (3) one witness was able to provide testimony regarding the circumstances surrounding the decedent coming into his office and asking him to draft the will and later a codicil, and he also testified that he and his secretary routinely acted as witnesses to wills prepared for his clients and that they would not sign the document until the testator had signed the will and requested that they attest it, and (4) the other witness testified that she would not have acted as a witness to the will or codicil if they had not been properly executed. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001).

Proof of Signatures.

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 holographic, must have two witnesses. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

Where only one attesting witness testified that the will contained the signature of the testator and the other witness, the widow of the second attesting witness, only identified her husband's signature as an attesting witness without offering testimony regarding the signature of the testator, the requirements of this section were not met, and the probate judge correctly refused to admit the will to probate. Children's Mercy Hosp. v. Chick, 262 Ark. 520, 559 S.W.2d 3 (1977).

Trial court did not clearly err in finding that a will was witnessed by the appropriate number of witnesses and with the required formalities under this section where the will and the proof of will were signed by three witnesses, even though only two were required, and where the two living witnesses testified, along with the will's notary. Although the testimony was conflicting, the appellate court left to the trial court the weight to be given to the testimony of the witnesses. Baxter v. Peters, 2009 Ark. App. 807, 373 S.W.3d 340 (2009).

Will Destroyed by Testator.

This section completely leaves out any procedure for establishing a will which has been effectively destroyed by the testator; it does provide for the method of proving a will which has been lost or destroyed by accident or design of some person other than the testator. The only logical reason for not making provisions for proof of a will destroyed intentionally by a testator, in accordance with § 28-25-109, is obvious; there is no will to prove — it has been legally and physically extinguished. Parker v. Mobley, 264 Ark. 805, 577 S.W.2d 583 (1979).

Cited: Pennington v. Pennington, 1 Ark. App. 311, 615 S.W.2d 391 (1981); Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988); Earney v. Sharp, 312 Ark. 9, 846 S.W.2d 649 (1993).