Carter v. Meek
In Carter v. Meek, 1998 Ark. (CA 98-264), an unpublished opinion delivered on October 28, 1998, we found that Mr. Carter was not entitled to notice and affirmed the order approving the wrongful-death settlement.
In the first appeal, Mr. Carter also contended that the probate court erred in failing to hold a hearing on his motion to set aside the order admitting the will to probate and appointing a personal representative, but we declined to address that issue because it was raised for the first time in his reply brief.
After the Court issued our mandate, the trial court heard Mr. Carter's motion to set aside the order admitting the will to probate and appointing Mrs. Meek personal representative. During the hearing, Mr. Carter argued that the will should not have been admitted to probate because it was not proved by any accepted method set out in Ark. Code Ann. 28-40-117 (1987), which provides in pertinent part:
(a) An attested will shall be proved as follows:
(1) By the testimony of at least two (2) attesting witnesses, if living at known addresses within the continental United States and capable of testifying; or
(2) If only one 1 or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying, or if, after the exercise of reasonable diligence, the proponent of the will is unable to procure the testimony of two (2) attesting witnesses, in either event the will may be established by the testimony of at least two (2) credible disinterested witnesses. The witnesses shall prove the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence.
The probate court refused to set aside its prior order, and issued an order on May 24, 1999, which stated, "the Order Admitting Will to Probate is hereby affirmed and the Proof of Will and its attestation were adequately shown by the evidence herein." Mr. Carter now appeals from the May 24, 1999, order, arguing that the trial court erred in admitting the will to probate because (1) the proponent failed to prove the will by either two attesting witnesses or two credible disinterested witnesses, and (2) there was no showing that any diligence was exercised in procuring the testimony of one of the attesting witnesses.