As
I stated in my last post, wills are the simplest part of an estate plan. However, there are many formalities and
hoops to jump through before a will is considered effective under Arkansas
law. I will discuss some (but not all) of the issues
below that frequently come up when trying to finalize a will.
1. Who
can make a will?
Under
Arkansas law, any person can make a will but you must be at least eighteen years of age and “of sound mind.”[1] Many of you may be thinking there is no
way your parents’ or grandparents’ will is of any use because they are out of
their mind. Luckily for you (and
your family), the courts have followed a simple test for over a century to
determine whose mind is “sound.” A
person is said to have a sound mind if (a) the person can remember, without
prompting, the extent and condition of their property; (b) to whom the person is
giving the property; and (c) the relations of those entitled to receive it.[2] It personally makes me feel a lot better
that Arkansas’ highest court actually said “[c]omplete sanity in the medical
sense is not required.”[3]
2. How many witnesses do you need?
Generally, two disinterested
witnesses who aren’t receiving some beneficial interest from the will must
attest the will.[4] The fact that an interested witness attested
your will won’t invalidate your will but the interested witness will forfeit
any amount that exceeds what they would have received under Arkansas’ intestacy
statutes.[5]
However, an interested witness won’t
forfeit anything if there are at least two other disinterested witnesses. Similar to who can make a will, these
witnesses must be at least eighteen and competent.
The person making the will (the “Testator”)
and the witnesses all need to sign the will. The Testator’s signature should be located at the end of the
document and be made or acknowledged in the presence of the other two
witnesses. Additionally, the
witnesses should also sign in the Testator’s presence. These are only the beginning of all of
the nitpicky rules concerning when and how a will is signed.
4. How do ensure your will is effective?
To ensure your will is effective, you should really speak to
someone who is competent and routinely works in estate planning. Although you can attempt to draft a
will yourself, you should at least let someone look over your documents to
ensure they will accomplish what you intended. Otherwise, a will or devise may be invalid or your assets
and property could go to unintended recipients.
[1] Ark. Code Ann. § 28-25-101
[2] Noland v. Noland, 330 Ark. 660, 665-66, 956 S.W.2d 173
(1997).
[3] DesLauriers v.
Marilyn Irene DesLauriers Revocable Trust, 2010 Ark. App. 211, 374 S.W.3d 732, 736 (2010).
[4] Ark. Code Ann. § 28-25-102
[5] Id.
[6] Some of these rules do not apply to
holographic wills.
