Will Contest Cases In Arkansas
In the usual will contest case, after the proponent of the will proves that it is rational on its face and has been executed and witnessed in accordance with testamentary formality, the party challenging the validity of the will is required to prove by a preponderance of the evidence that the will is invalid. In re Estate of Davidson, supra; Hodges v. Cannon, supra.
In the case of a beneficiary of a will who procures the making of the will, a rebuttable presumption of undue influence arises, which places on the beneficiary the burden of going forward with evidence that would permit a rational fact-finder to conclude, beyond a reasonable doubt, that the will was not the product of insufficient mental capacity or undue influence. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992); Edwards v. Vaught, 284 Ark. 262, 681 S.W.2d 322 (1984); Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984).
A beneficiary procures a will, thereby causing the rebuttable presumption of undue influence to arise, by actually drafting it for the testator. See, e.g., Looney v. Estate of Wade, supra; Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Oliver v. Griffe, 8 Ark. App. 152, 649 S.W.2d 192 (1983).
A beneficiary also procures a will, thereby causing the rebuttable presumption to arise, by planning the testator's will and causing him to execute it. See Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980); Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955).
However, a beneficiary who merely drives the testator to the office of the attorney who drafted the will at issue or who is merely present when a will is executed does not, by his presence, procure the will. See, e.g., Rose v. Dunn, supra; Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963); Hodges v. Cannon, supra.
Whether the beneficiary procured the making of a will is a threshold question that must be answered in the affirmative before the beneficiary must prove beyond a reasonable doubt that the will was not the result of undue influence or lack of testamentary capacity. Rose v. Dunn, supra; Hodges v. Cannon, supra. However, the burden of proof, in the sense of the necessity to prove lack of mental capacity or undue influence by a preponderance of the evidence, remains on the party challenging the will. Hodges v. Cannon, supra.