I Will, if You Will: Will Contracts in Arkansas

Oh, families! How do you even begin to express the intimate bonds that knit-us with the ones we love? With a contract, obvs.

What is a Contract for Will?

It’s a contract you make with someone before they die that your Last Will and Testament (<–picture this in Gothic font, as that makes it more legal) will devise x.

X being the variable.

I know, I know, you aren’t a math person. Hang in there.

There are a few common scenarios:

1. Devoted niece agrees to be caretaker for elderly relative in his last years, if elderly relative will leave a bequest of $25,000 to her in his will.

2. Husband and Wife each have children from a previous marriage. Neither of them really trusts that the other one will take care of their children if they die, so they execute mutual or reciprocal wills (mutual wills are done together, but not identical; reciprocal wills are identical) and make a contract that neither of them may change the will after the first spouse dies.

3. Husband and Wife separate, but still have feelings for each other. Husband wants wife’s property, which she contracts to give him, but only if he revises his will and they live together for at least 90 days following reconciliation.

Are They Legal?

Yes. Black v. Hill, 1915, 117 Ark. 228, 174 S.W. 526 (“One may make a valid contract with another to devise or bequeath property.”).

What are the Requirements?

Before 1981:

After 1981:

Don’t worry, lady. We’ve all made poor choices. I’m sure this will never end up on the internet.

Ok, for real though:

Before 1981: You just had to have all of the normal contract elements. An oral contract was just fine. See Kelley v. Pipkin, 1980, 268 Ark. 1009, 598 S.W.2d 102.

You still need evidence though.

After 1981: You are going to need a valid contract, plus a writing. The writing can be in the will itself (with extrinsic evidence) or a writing signed by the decedent. The fact that there are mutual or reciprocal wills alone does not create the presumption of a will contract. See Ark. Code Ann. s. 28-24-101.

For an example of how not to do it after 1981, see Pickens v. Black, 1994, 885 S.W. 2d 872.

A writing isn’t enough though. You still have to have consideration, mutual intent, etc., etc.

Burden of Proof: 

There seem to be a few different opinions on this:

There is a “heavy burden of proof” upon a litigant who alleges binding contract not to revoke or alter will. Mabry v. McAfee, 1990, 301 Ark. 268.

“Clear and convincing” according to Anderson v. Parker, 1959, 230 Ark. 335.

“Clear, satisfactory, and convincing” according to Merrell v. Smith, 1957, 228 Ark. 167.

“Clear, cogent, and convincing” according to Morris v. Cullipher, 1989, 299 Ark. 204. (Note to self: Look up “cogent”).

“Clear, cogent, satisfactory, and convincing” according McDonald v. Petty, 1973, 254 Ark. 705. There’s that “cogent” word again. Come on, no one knows what that means.

“Substantially beyond reasonable doubt” according to Hodges v. Cannon, 1999, 5 S.W. 3d 89. (*raises hand slowly*…Ummm….isn’t that basically clear and convincing?)

Uh…so I don’t know what to tell you. Maybe just put them all in there and hope for the best. I don’t think I’ve ever seen that many standards for a single doctrine, but I’m not whining because I’m just excited that there is actually case law on something.