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Arkansas Will Is Invalid Because One Witness Is Under Age

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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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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.