Arkansas Will Contest / Caveat Petition Package

ARKANSAS WILL CONTEST / CAVEAT PETITION PACKAGE

Contest of Probate of Will under Ark. Code § 28-40-113

CRITICAL DEADLINES — Ark. Code § 28-40-113(b):
(A) If personally noticed under § 28-40-110 of hearing on probate petition — file at or BEFORE the hearing.
(B) If notified of admission of will under § 28-40-111 — file within 3 months of FIRST publication.
(C) If served personally with copy of notice — later of (i) 3 months from first publication OR (ii) 45 days from personal service.
(D) If none of A-B-C apply — outer bar of 3 YEARS from admission.
Foreign wills — same time as resident, plus 45 days after foreign-domicile court sets aside.

PART 1 — PRE-SUIT INVESTIGATION CHECKLIST

A. Standing & Threshold Issues

☐ Confirm client is an "interested person" under Ark. Code § 28-1-102(11) — heir, devisee, creditor, or any person with property right or claim against estate
☐ Identify circuit court (probate division): Circuit Court of [______________] County, Arkansas, Probate Division
☐ Obtain probate case number: [PR]-[__________________]

B. Limitations Calendar — IDENTIFY YOUR SUBSECTION

☐ Date of testator's death: [__/__/____]
☐ Date will admitted to probate: [__/__/____]
☐ Date of first publication of notice of admission (§ 28-40-111): [__/__/____]
☐ Date of personal service (if any) of notice on Contestant: [__/__/____]
☐ Determine controlling subsection of § 28-40-113(b)(2):
☐ (A) Personal notice under § 28-40-110 received before probate hearing — deadline: at or before hearing on [__/__/____]
☐ (B) Publication-only notice under § 28-40-111 — deadline: 3 months from first publication = [__/__/____]
☐ (C) Publication + personal service of copy — deadline: later of 3 months from publication or 45 days from service = [__/__/____]
☐ (D) No notice of any kind — outer bar: 3 years from admission = [__/__/____]
☐ Calendar 60-day, 30-day, 14-day, and 7-day reminders before controlling deadline

C. Document Collection

☐ Certified copy of probated will and codicils
☐ Order admitting will to probate
☐ Petition for probate and supporting proof
☐ All notices issued under §§ 28-40-110, 28-40-111 with proofs of service/publication
☐ Prior wills, codicils, drafts (subpoena drafting attorney's file under Ark. R. Civ. P. 45)
☐ Drafting attorney's complete file: engagement letter, billing, drafts, communications, capacity notes
☐ Medical records 24 months before to 6 months after execution
☐ Pharmacy records (psychotropics, opioids, anti-dementia drugs)
☐ Treating physician, psychiatrist, neuropsychology records
☐ Hospital, nursing home, hospice records
☐ Financial records (banks, brokerage, real estate, beneficiary designations) for 36 months pre-execution
☐ Care-facility visitor logs and care notes
☐ Digital communications (preserve immediately): email, text, social media, cell records

D. Witness Identification

☐ Two attesting witnesses (§ 28-25-103)
☐ Notary on self-proving affidavit (§ 28-25-106)
☐ Drafting attorney and staff
☐ Treating physicians, psychiatrists, NPs
☐ Caregivers, home health aides, hospice/SNF staff
☐ Family members aligned and adverse
☐ Financial advisors, CPAs, bankers, clergy

E. Grounds Analysis

☐ Lack of testamentary capacity (§ 28-25-101; Looney; Davidson) — sound mind and disposing memory
☐ Undue influence (Pyle v. Sayers; Rose v. Dunn) — confidential relationship + procurement → presumption shifting burden to proponent (beyond reasonable doubt)
☐ Fraud — by representation, in execution, or in inducement
☐ Improper execution under § 28-25-103
☐ Revocation (§ 28-25-109) — subsequent will, codicil, or physical act
☐ Insane delusion materially affecting dispositions
☐ Forgery
☐ Mistake

F. Litigation Hold & Preservation

☐ Written litigation-hold notice to all custodians
☐ Preservation demand including ESI metadata
☐ Consider expedited preservation order if spoliation risk

PART 2 — CAVEAT / WRITTEN OBJECTION FILED BEFORE OR AT HEARING (§ 28-40-113(b)(2)(A))

Use this where personal notice under § 28-40-110 received before the probate hearing. Grounds must be filed at or before the hearing.

IN THE CIRCUIT COURT OF [_______________________] COUNTY, ARKANSAS

PROBATE DIVISION

WRITTEN GROUNDS OF OBJECTION TO PROBATE OF WILL

Comes now [CONTESTANT FULL LEGAL NAME], an interested person within Ark. Code § 28-1-102(11), and pursuant to Ark. Code § 28-40-113(b)(2)(A), files these Written Grounds of Objection to the Probate of the purported Last Will and Testament of [DECEDENT] dated [__/__/____], and states:

1. Contestant is an interested person, being Decedent's [relationship] and [heir at law / devisee under prior will / other].

2. On [__/__/____], Proponent filed a petition for probate of the purported will dated [__/__/____].

3. Notice of the hearing on the petition was served upon Contestant under Ark. Code § 28-40-110 on [__/__/____]. These Written Grounds are filed at or before the hearing as required by § 28-40-113(b)(2)(A).

4. Contestant objects to admission of the will on the grounds detailed in PART 3 (incorporated by reference): ☐ lack of capacity; ☐ undue influence; ☐ fraud; ☐ improper execution; ☐ revocation; ☐ forgery; ☐ other.

5. Contestant demands trial by jury on all issues triable to a jury, pursuant to Ark. Code § 28-40-115 and Ark. R. Civ. P. 38.

WHEREFORE, Contestant requests the Court refuse admission of the purported will, set the contest for trial under § 28-40-115, declare Decedent intestate or admit the Prior Will, and grant such further relief as is just.

Dated: [__/__/____]

[ATTORNEY SIGNATURE BLOCK]
[Attorney Name], Ark. Bar No. [____]
[Firm Name, Address, Phone, Email]
ATTORNEY FOR CONTESTANT

PART 3 — VERIFIED PETITION CONTESTING PROBATE OF WILL (§ 28-40-113)

Use this when filing within the post-admission contest window (3 months from publication or 45 days from personal service; outer 3-year bar).

IN THE CIRCUIT COURT OF [_______________________] COUNTY, ARKANSAS

PROBATE DIVISION

VERIFIED PETITION CONTESTING PROBATE OF WILL

[CONTESTANT FULL LEGAL NAME] ("Contestant"), by undersigned counsel, pursuant to Ark. Code §§ 28-40-113 and 28-40-115, contests the probate of the purported Last Will and Testament of [DECEDENT] dated [__/__/____] (the "Contested Will"), and states:

I. PARTIES, JURISDICTION, VENUE

1. [DECEDENT] died on [__/__/____] domiciled at [_____________________________________________] in [______________] County, Arkansas.

2. Contestant resides at [_____________________________________________] and is an interested person within Ark. Code § 28-1-102(11) as Decedent's [relationship].

3. [PERSONAL REPRESENTATIVE NAME] was appointed by Order entered [__/__/____] and has accepted letters testamentary.

4. All other interested persons — devisees and heirs — are listed in Exhibit A.

5. This Court has jurisdiction over the Estate under Ark. Code § 28-1-104 and venue is proper under Ark. Code § 28-40-102.

II. PROBATE HISTORY AND TIMELINESS

6. A petition to admit the Contested Will was filed [__/__/____]; the Court admitted the will to probate by Order entered [__/__/____].

7. Notice under § 28-40-111 was first published on [__/__/____]; personal service of notice (if any) on Contestant occurred [__/__/____].

8. This Petition is timely under § 28-40-113(b)(2)(__) because [explain — within 3 months of first publication / within 45 days of personal service / within 3 years where no notice].

III. FACTUAL ALLEGATIONS

9. Decedent's Prior Will dated [__/__/____] devised [SUMMARY].

10. Decedent's condition deteriorated beginning [__/__/____] with [diagnoses, medications, hospitalizations, dependency on caregiver(s)].

11. [ALLEGED INFLUENCER / PROPONENT] [conduct — isolation, control of communications, financial control, attorney selection, transportation, presence at execution].

12. The Contested Will was purportedly executed [__/__/____] under [location, attendees, attorney selection, time elapsed, private meeting (or not) with counsel].

13. The Contested Will radically deviates from Decedent's testamentary pattern by [disinheriting natural objects of bounty, conferring substantial benefit on alleged influencer, displacing prior fiduciaries].

IV. COUNT I — LACK OF TESTAMENTARY CAPACITY

14. Paragraphs 1–13 incorporated.

15. Under Ark. Code § 28-25-101 and Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992), testator must be of sound mind and disposing memory, with the ability to (a) retain in memory and understand the nature and extent of property, (b) know natural objects of bounty, (c) understand disposition being made, and (d) connect these in a rational scheme.

16. On [__/__/____], Decedent lacked testamentary capacity as shown by [specific facts — diagnosis (dementia, delirium); medication impairment; inability to identify family; delusions].

17. The Contested Will is invalid.

V. COUNT II — UNDUE INFLUENCE

18. Paragraphs 1–13 incorporated.

19. Under Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001), and Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984), where the contestant proves (a) a confidential relationship between the alleged influencer and the testator, (b) the alleged influencer procured the will, and (c) the alleged influencer received substantial benefit, a presumption of undue influence arises and the proponent must prove the absence of undue influence beyond a reasonable doubt.

20. Confidential relationship. [ALLEGED INFLUENCER] had a confidential relationship as [caregiver, attorney-in-fact, attorney, fiduciary, joint-account signatory, dependent companion].

21. Procurement. [ALLEGED INFLUENCER] procured the Contested Will by [selecting attorney, providing terms, transporting Decedent, paying fees, presence at signing, isolating Decedent].

22. Benefit. [ALLEGED INFLUENCER] receives substantial benefit under the Contested Will, contrary to Decedent's prior testamentary pattern.

23. Under Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955), Proponent must rebut the presumption beyond a reasonable doubt and cannot do so. The Contested Will is invalid.

VI. COUNT III — FRAUD

24. Paragraphs 1–13 incorporated.

25. [ALLEGED INFLUENCER] knowingly made false representations of material fact to Decedent with intent to induce reliance; Decedent reasonably relied; Decedent executed the Contested Will materially different from Decedent's true intent.

26. Specifically [identify — false representations about beneficiaries' conduct, about the instrument's contents, about its legal effect].

VII. COUNT IV — IMPROPER EXECUTION (§ 28-25-103)

27. Paragraphs 1–13 incorporated.

28. Ark. Code § 28-25-103 requires that the will be (a) in writing, (b) signed by testator or by a person at testator's direction in testator's presence, and (c) attested by two competent witnesses who signed at testator's request and in testator's presence.

29. The Contested Will fails to satisfy § 28-25-103 because: ☐ Decedent did not sign in witnesses' presence; ☐ witnesses did not sign at testator's request / in testator's presence; ☐ witness not competent; ☐ signature is not Decedent's; ☐ [OTHER].

VIII. JURY DEMAND

30. Contestant demands trial by jury pursuant to Ark. Code § 28-40-115 and Ark. R. Civ. P. 38.

IX. PRAYER FOR RELIEF

WHEREFORE, Contestant respectfully prays this Court:

A. Set aside the Order admitting the Contested Will to probate;
B. Declare the Contested Will invalid in whole or in part;
C. Admit the Prior Will dated [__/__/____] to probate, or declare Decedent intestate;
D. Remove [PERSONAL REPRESENTATIVE] and appoint a successor;
E. Award Contestant costs and reasonable attorneys' fees as permitted by law;
F. Grant such other relief as is just.

Dated: [__/__/____]

[ATTORNEY SIGNATURE BLOCK]
[Attorney Name], Ark. Bar No. [____]
[Firm Name, Address, Phone, Email]
ATTORNEY FOR CONTESTANT

PART 4 — VERIFICATION

STATE OF ARKANSAS )
COUNTY OF [_____________] ) ss.

I, [CONTESTANT NAME], being duly sworn, depose and state: I am the Contestant in the foregoing Verified Petition; I have read the Petition; the factual allegations therein are true based upon my personal knowledge, and as to matters stated on information and belief, I believe them to be true.

____________________________________
[CONTESTANT SIGNATURE]
Printed Name: [____________________]

Subscribed and sworn to before me on [__/__/____].

____________________________________
Notary Public, State of Arkansas
Commission Expires: [__/__/____]

PART 5 — NOTICE TO INTERESTED PERSONS (Ark. Code § 28-1-112)

TO: The Personal Representative, all devisees under the Contested Will, all heirs of Decedent, and other interested persons listed on Exhibit A.

YOU ARE HEREBY NOTIFIED that on [__/__/____], [CONTESTANT NAME] filed a Verified Petition Contesting Probate of Will in the Circuit Court of [______________] County, Arkansas, Probate Division, Case No. [PR]-[__________].

The Petition challenges the Order admitting to probate the purported Last Will and Testament of [DECEDENT] dated [__/__/____] on the grounds of [grounds].

YOU ARE REQUIRED to file a response in accordance with the Arkansas Rules of Civil Procedure within thirty (30) days after service of this Notice (or such other period as required by the Court), or default may be entered.

Dated: [__/__/____]

____________________________________
[ATTORNEY NAME], Counsel for Contestant
[ADDRESS / PHONE / EMAIL]

(Original Notice signed by Clerk where required:)
____________________________________
Clerk of the Circuit Court of [______________] County

PART 6 — DISCOVERY PLAN

A. Initial Disclosures (Ark. R. Civ. P. 26)

☐ Witnesses with discoverable information
☐ Documents and ESI in possession or control
☐ Computation of damages (where applicable)

B. Written Discovery

☐ Interrogatories (Rule 33): drafting and execution facts; attorney engagement; communications with decedent; capacity assessments; relationships among parties
☐ Requests for Production (Rule 34): drafting attorney's full file with metadata; financial records; medical authorizations; ESI
☐ Requests for Admission (Rule 36): authentication; foundational facts; capacity admissions
☐ Subpoenas duces tecum (Rule 45): medical providers, banks, care facilities, telecom carriers

C. Depositions

☐ Drafting attorney (testator-client privilege generally yields in will contests under Arkansas law)
☐ Attesting witnesses, notary
☐ Treating physicians, psychiatrists (with HIPAA-compliant authorizations or court order)
☐ Caregivers, facility staff
☐ Proponent and other devisees
☐ Financial advisors, accountants
☐ Character/capacity lay witnesses

D. Experts

☐ Retain forensic psychiatrist or neuropsychologist for retrospective capacity opinion
☐ Forensic document examiner for signature/handwriting if disputed
☐ Pharmacology expert for medication-impairment opinion
☐ Disclose under Ark. R. Civ. P. 26 and scheduling order

E. Privileges & Discovery Issues

☐ Patient-litigant exception for medical records when capacity at issue
☐ Testator-client privilege generally yields in will contests
☐ Confidential-relationship discovery focused on Pyle/Rose factors
☐ Spoliation and preservation issues

PART 7 — TRIAL-READY ELEMENTS & BURDEN OF PROOF

A. Arkansas Burden of Proof Allocation

B. Elements — Trial Outline

Lack of Capacity (Looney/§ 28-25-101):

1. Know nature and extent of property
2. Know natural objects of bounty
3. Understand disposition
4. Connect rationally

Undue Influence (Pyle/Rose):

1. Confidential relationship
2. Procurement of the will
3. Substantial benefit to alleged influencer
4. (Presumption arises; proponent must rebut beyond reasonable doubt)

Fraud:

1. False representation of material fact
2. Knowledge of falsity
3. Intent to induce reliance
4. Justifiable reliance
5. Testamentary disposition different from true intent
   (beyond reasonable doubt under Orr)

Improper Execution (§ 28-25-103):

1. Writing
2. Signed by testator (or at direction)
3. Two attesting witnesses
4. Witnesses signed in testator's presence at testator's request

C. Jury Trial (Ark. Code § 28-40-115; Ark. R. Civ. P. 38)

☐ Jury demand timely filed in the Petition or by separate demand
☐ Proposed jury instructions on each ground (AMI Civil — Wills)
☐ Special verdict / interrogatories
☐ Voir dire focused on caregivers, dementia, attorney bequests, family wealth

D. Exhibit & Witness Preparation

☐ Trial exhibit list; original Contested Will; capacity timeline; financial timeline
☐ Demonstratives: cognitive decline chart; family tree; medication chart
☐ Witness order: foundation; capacity; relationship; procurement; benefit
☐ Cross-outlines for proponent witnesses

PART 8 — SETTLEMENT AGREEMENT (Family Settlement / Compromise)

Arkansas recognizes family settlement agreements compromising will contests. Court approval is required where minors or incapacitated persons are affected.

FAMILY SETTLEMENT AGREEMENT AND COMPROMISE OF WILL CONTEST

This Family Settlement Agreement ("Agreement") is entered into as of [__/__/____] by and among:

• [CONTESTANT NAME] ("Contestant");
• [PERSONAL REPRESENTATIVE NAME] ("PR");
• [LIST OTHER PARTIES] (collectively, the "Parties").

RECITALS

A. [DECEDENT] died on [__/__/____] domiciled in [______________] County, Arkansas.
B. The Contested Will dated [__/__/____] was admitted to probate in the Circuit Court of [______________] County, Probate Division, Case No. [PR]-[__________], by Order entered [__/__/____].
C. Contestant filed a Verified Petition Contesting Probate of Will on [__/__/____] alleging [grounds].
D. The Parties wish to compromise all claims without further litigation.

AGREEMENT

1. Distribution. Notwithstanding the Contested Will, the net estate (after debts, taxes, administration expenses, approved fees) shall be distributed:

2. Dismissal. Contestant shall file a stipulated dismissal with prejudice within ten (10) business days after court approval (where required).

3. Mutual Releases. Each Party releases each other Party from all claims relating to Decedent, the Estate, the Contested Will, any prior will, any inter vivos transfer, and the administration of the Estate, except obligations under this Agreement.

4. No Admission. This Agreement is a compromise and not an admission of liability or merit.

5. Confidentiality. Terms remain confidential except as required by court order, tax authorities, or professional advisors.

6. Court Approval. Contingent upon court approval where required (minors, incapacitated persons, charitable interests).

7. Tax Treatment. Each Party responsible for tax consequences; advised to consult independent counsel; may be treated as qualified disclaimer or family settlement under Treas. Reg. § 25.2518-2.

8. Attorneys' Fees. Each Party bears own fees except as provided herein.

9. Governing Law. Arkansas law governs.

10. Counterparts; Electronic Signatures. May be executed in counterparts and by electronic signature under Arkansas UETA (Ark. Code § 25-32-101 et seq.).

11. Entire Agreement. This is the entire agreement of the Parties.

[SIGNATURE BLOCKS FOR ALL PARTIES, WITH NOTARIZATION]

SOURCES AND REFERENCES

• Ark. Code Title 28 — Wills, Estates, and Fiduciary Relationships
• Ark. Code § 28-40-113 (Contesting probate of will)
• Ark. R. Civ. P.
• Arkansas Model Jury Instructions — Civil (Wills)
• Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001)
• Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984)
• Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992)
• Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955)
• In re Estate of Davidson, 310 Ark. 639, 839 S.W.2d 214 (1992)