Arkansas Will Is Invalid Because One Witness Is Under Age

JUNE 14, 1999 VOLUME 6, NUMBER 50

Goldia Sevier Horne was 99 years old when she died in Arkansas. She had signed a will in 1989, leaving her estate to a collection of friends and family members. Shortly after her death, the personal representative named in that will submitted it to the probate court, and it was found to be her last will.

Mary J. Norton had been Ms. Horne’s caregiver for several years prior to her death. About a month after Ms. Horne’s 1989 will was admitted to probate, Ms. Norton produced a new will, signed in 1996, which substantially changed Ms. Horne’s distributive plan. Under the new will, Ms. Norton was to receive $25,000 plus the residue of the estate after some distributions to friends and family.

Arkansas requires that there be two witnesses to a will before it can be admitted to probate. Ms. Horne’s 1996 will did have two witnesses–Ms. Norton’s daughter and granddaughter. Although it is permissible for beneficiaries and their family members to witness wills, there was an additional problem in this case. Ms. Norton’s granddaughter was only fourteen years old when she signed Ms. Horne’s will as a witness.

The beneficiaries under Ms. Horne’s 1989 will objected to the admission of the new document. They pointed out that Arkansas law requires that witnesses to a will be both mentally competent and over the age of majority.

Ms. Norton argued that only “substantial compliance” with technical requirements should be necessary. There was no doubt, she argued, that Ms. Horne actually signed the will, and she was prepared to prove that Ms. Horne was competent when she did so. The mere fact that one witness was under age should not frustrate Ms. Horne’s wishes, as expressed in her will.

The Arkansas Supreme Court disagreed. Although the court acknowledged that there are some areas in which flexibility is permitted (such as whether the signature of the testator is at the “end” of the document, or whether he or she “declares” the will to be his or her actual will, both of which are required under Arkansas law), the witnessing requirements are unambiguous and mandatory. Ms. Horne’s later will was invalid, and Ms. Norton took nothing from her estate. Norton v. Hinson, 5/12/99.

Ms. Horne’s situation raises several issues. A will which substantially changes an elderly person’s estate plan, and especially one which leaves a significant amount to a caretaker, is automatically suspect. But Ms. Horne’s mental capacity and susceptibility to undue influence were not in question. She had simply failed to comply with the statutory requirements for a valid will. The same result would have occurred if she had typed her own will in front of witnesses, then signed it before a notary public; the law requires two witnesses to the actual signing.

It also raises suspicion when the witnesses to a will are relatives of the primary beneficiary. Neither Arkansas nor Arizona has a rule prohibiting interested persons from witnessing wills. Still, it is advisable that witnesses not be in any way interested in the outcome, so that undue influence is less likely to be at issue.

Arizona law does not actually require a witness to be an adult, so Ms. Horne’s will might have been valid if executed in this state. Like a number of other states, Arizona only requires that witnesses to a will be “competent.” If the Horne will had been signed and witnessed in Arizona, the likely question for the probate court would have been whether Ms. Norton’s teenage granddaughter understood what she was witnessing.

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