Ark. Code Ann. § 28-40-302 (2026)

Research References

Ark. L. Notes.

Lonnie Beard, Questioning the practice of executing duplicate original wills, 2013 Ark. L. Notes 1030.

Case Notes

Authority of Court.

In order to establish lost will, probate court must follow dictates of this section. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

Burden of Proof.

To establish lost or destroyed wills, it is not sufficient simply to establish the fact that there was a will; it is essential that the proof show its provisions. Dudgeon v. Dudgeon, 119 Ark. 128, 177 S.W. 402 (1915).

Where a will offered for probate was regular in form and met all the statutory requirements, including attestation of witnesses, the contestants had the burden to introduce testimony which clearly, positively, and satisfactorily established the contents of a subsequent will, and it was not sufficient to show that the will had been executed containing a revocation clause of former wills; they should have introduced testimony showing the entire contents of the will or all the material parts of it. Reed v. Johnson, 200 Ark. 1075, 143 S.W.2d 32 (1940).

The burden is not to overcome the presumption of revocation of a will by clear, satisfactory, and convincing evidence, since only a preponderance of the evidence is required. Garrett v. Butler, 229 Ark. 653, 317 S.W.2d 283 (1958).

Proponent of lost will has the burden of proving execution of will and its contents. One seeking to establish lost will must prove its execution and contents by strong, cogent, and convincing evidence, though he is not required to produce evidence sufficient to remove all reasonable doubt. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

Circuit court did not err in finding that subdivision (2)(A) of this section did not require a second will to have physically existed at the time of the father's death, given case law stating that subdivision (2)(A) meant legal existence, not physical existence. Cunningham v. Dillard (In re Estate of Cunningham), 2019 Ark. App. 177, 574 S.W.3d 214 (2019).

Competency of Testimony.

Where the effect of the testimony of a witness testifying to the execution of a lost will is to make him the sole or principal beneficiary, a will cannot be established by his testimony. Allnut v. Wood, 176 Ark. 537, 3 S.W.2d 298 (1928).

Fraudulent Destruction.

Loss or destruction, without the testator's consent or knowledge, of a will deposited in a bank for safekeeping during the testator's lifetime amounted to fraudulent destruction of the will within this section. Rose v. Hunnicutt, 166 Ark. 134, 265 S.W. 651 (1924).

Lost Wills.

A lost will may be proved at a trial although it has never been reinstated as a lost record. Turley v. Evins, 109 Ark. 115, 158 S.W. 1080 (1913).

Until it is shown that a will has been duly executed, there can be no establishment of a lost will. Porter v. Sheffield, 212 Ark. 1015, 208 S.W.2d 999 (1948).

It was not necessary for the trial judge to determine what became of decedent's will; it was enough that he found that it was not revoked or cancelled by her. Thomas v. Thomas, 30 Ark. App. 152, 784 S.W.2d 173 (1990).

Evidence was insufficient to prove a lost will since the decedent's failure to revoke or destroy his will as testified to by the appellant did not constitute evidence that the will was in existence at the time of his death and there was no proof in the record that the will was fraudulently destroyed before the decedent died. Matheny v. Heirs of Oldfield, 72 Ark. App. 46, 32 S.W.3d 491 (2000).

“Lost will” was improperly admitted to probate; the fact that the decedent retained a copy of the lost will was improperly considered by the trial court in determining whether the presumption of revocation was rebutted and the executor named in the lost will did not otherwise meet his burden of establishing the lost will. Remington v. Roberson, 81 Ark. App. 36, 98 S.W.3d 44 (2003).

Court properly denied a petition by testator's brother to probate an Israeli will as a lost will where the brother failed to prove by strong, cogent, and convincing evidence that the testator executed the Israeli will; further, the testator's widow and a business associate testified that the signature on the Israeli will was not the testator's. Abdin v. Abdin, 94 Ark. App. 12, 223 S.W.3d 60 (2006).

Circuit court found that the statutory requirements were met and the estate rebutted the presumption of revocation; the testimony overcame the presumption, as there was ample evidence that decedent was determined her son would not inherit anything, plus she believed her estate planning was complete, and the admission of a copy of the will to probate was not found to be error. Whatley v. Estate of McDougal, 2013 Ark. App. 709, 430 S.W.3d 875 (2013).

Testimony supported a conclusion that the will was in existence at the time of the decedent's death, and it was not necessary for the circuit court to determine what happened to the decedent's original will; it was enough that the trial court found that the will was not revoked or cancelled by the decedent. Whatley v. Estate of McDougal, 2013 Ark. App. 709, 430 S.W.3d 875 (2013).

In a lost will case, there was no strong, cogent, or convincing evidence about the circumstances under which the purported will was produced—it may have been typewritten, handwritten, or printed from a computer. In the absence of proof of one of the necessary elements to prove a lost will, it could not be said that the circuit court erred in finding that the executrix of the decedent's estate failed to prove both the execution and contents of the will. Griffith v. Griffith, 2018 Ark. App. 122, 545 S.W.3d 212 (2018).

Photocopied Copy of Will.

In a proceeding to admit photocopied copy of a decedent's executed will as final will of the decedent under theory that the original will was lost or accidently destroyed, the testimony of the drafting attorney that he had caused a copy of the executed will to be made and kept the copy in his possession and the testimony of the attorney and both witnesses to the will as to how, when, and where the will was executed properly proved the will despite the argument that it was possible to transpose a witness' signature by photocopying, since there was no evidence of such transposition. Tucker v. Stacy, 272 Ark. 475, 616 S.W.2d 473 (1981).

Presumption of Destruction.

The presumption that the testator destroyed a will must be overcome before a lost will can be established. Porter v. Sheffield, 212 Ark. 1015, 208 S.W.2d 999 (1948).

Presumption of Revocation.

Where there is no direct or positive testimony showing that a will was in existence at time of a decedent's death or that it was fraudulently destroyed before his death, where it is admitted that the will cannot be found, the law presumes the revocation of the will; however, presumption may be overcome by proof. Garrett v. Butler, 229 Ark. 653, 317 S.W.2d 283 (1958).

Where in a will contest although the evidence was sufficient to prove that a will, a copy of which was introduced, was actually executed by the testator, the evidence was insufficient to rebut the presumption that a will in the possession of, or accessible to, the testator was revoked by the testator where the will could not be produced at his death, since there was no evidence offered to suggest that the will had been fraudulently destroyed, misplaced, or destroyed by accident. Wharton v. Moss, 267 Ark. 723, 594 S.W.2d 856 (Ct. App. 1979).

Cited: Parker v. Mobley, 264 Ark. 805, 577 S.W.2d 583 (1979).