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The after-born shall inherit, leaving the nephew out of luck

Elbert and Irma got married. Irma already had a daughter, Deborah. Elbert had a favorite nephew, Robert.

As is often the case, in 1958 Elbert and Irma signed the same will. Not knowing who would die first, their will had to account for both possibilities.

  • If Elbert died first, half of their jointly-owned real estate would go to nephew Robert, who would essentially step into Elbert’s shoes, owning that joint property with Irma.
  • If Irma died first, all her property would be entirely owned by Elbert, until his death, when it would pass in equal shares to Robert and Deborah.

Some time later, Elbert and Irma were blessed with a son, Mark. But the joint will was never changed.

Elbert died in 2005. Robert found the will. Irma petitioned the Carroll County (Arkansas) circuit court to name her as personal representative, but asked the court to disregard the will and determine that her son Mark receive all Elbert’s property.

Elbert’s nephew Robert objected, arguing that Irma had signed the joint will with Elbert, leaving Elbert’s half of their joint property to Robert. Robert argued that the joint will was a contract between Irma and Elbert, and she shouldn’t be allowed to claim otherwise.

Like some states, Arkansas has a statute to protect the inheritance rights of offspring not named in a will. The purpose of such statutes is to “guard against testamentary thoughtlessness,” according to the opinion of the Arkansas Court of Appeals in  Robert Dotson v. Irma Dotson. These statutes refer to pretermitted heirs and after-born children.

The “testamentary thoughtlessness” the court referred to is the unintentional omission of a child in the making of a will. A “testament” is a statement made in contemplation of death. The term “last will and testament” is somewhat redundant, because a will is a testament.  Elbert and Irma had no children together when they made their will, and the terms of their will showed that they gave no thought to having a child in the future.

If a child is not named in a will in Arkansas (and many other states), the child has a right to claim the same share that the child would inherit if there was no will.

The law generally requires strong evidence of intent to disinherit a child. To show intent to disinherit, the will must identify the child and specifically state that the child gets nothing or only something of little value.  Simply omitting a child from the will is not enough to show the intent to disinherit. If a child was not born when the will was made, there is not likely to be any evidence of intent to disinherit that unborn child, and the after-born child statute will come to that child’s rescue.

As is often the case, the appellate court was asked to resolve a situation in which each party’s claim had firm legal basis.

Courts are relied upon to enforce contracts, including wills, and the common understanding that courts will do so gives great stability to American economic activities.

The after-born child statute is also important, so that children won’t be deprived of the inheritances that they would otherwise be entitled to because of a parent forgetting to change his will each time a child is born, though a well-drafted will provides for afterborn children, so revision is not required with the birth of a child.

The Arkansas Court of Appeals decided that the statutory right applicable to this situation should win over the more general principle that a contract be enforced according to its terms. The afterborn child statute was specifically  intended by the Arkansas legislature to be applied in such cases. Until Elbert died, Robert had only an expectancy. But from the time Mark was born, he had a statutory right to be the heir of his parents, displacing Robert’s expectancy.


About Harry Styron

I'm a lawyer and mediator who lives in Branson, Missouri, whose professional interests involve real estate, nonprofits, and local government. As of 2022, I'm shrinking my legal practice so that I have more time to mediate real estate disputes. I'm happy to mediate using video platforms like Zoom and WebEx, or in person anywhere in Missouri.

5 responses »

  1. I read with interest your “The After-born shall inherit, leaving nephew out of luck” comments, but I have a few questions:

    1. Since when does the lack of a separate contract “not to revoke” apply as a basis for refusing Gregory to the case at bar?

    2. Who knows why Elbert never changed his will – what if he and his nephew had had a farming partnership understanding and maybe his son had already received his inheritance from his dad through inter vivos gifts? And now, that son might be taking advantage of the after-born statute to take what rightfully belongs to the nephew? I would hope if a Supreme Court review is requested that the outcome would be determined based on the original individual merits of this case and not on an assumption that Gregory does not apply.

    3. Being that the trial court ruled that the joint will became irrevocable upon Elbert’s death, why did the appellate court apparently want to dodge making a ruling on this critical point and could this be why Appellee didn’t cross-appeal — to avoid weakening their cause or position?

    4. As for the contractual element of Elbert’s will, consider whether any of Elbert’s creditors would prevail in receiving their “dues” before any award to “after-born Mark”? How much more should not a will-contracted-nephew-beneficiary receive his specified inheritance prior to the after-born receiving his share?

  2. Christy,
    I don’t have any experience with Arkansas probate law and am unable to add anything to the court’s explanation of its own reasoning.

    The common law has a strong tradition against disinheriting children, a tradition embodied in the after-born child statute. Elbert Dotson could have changed his will to give his child something, with the bulk of his estate going to his nephew, if that’s what Elbert really wanted.

    Of course, Elbert probably didn’t know it would turn out like this.

    That’s why people should review their estate plans–with attorneys who stay on top of developments in probate law– when major family events occur, such as the birth of a surprise child.

    If a child is getting his “share” before the testator’s death, the estate planning document (will or trust) should be amended to reflect the “advancements.”

  3. Harry,
    Sorry for this long delay in addressing your 12-29-09 8:53am response.

    In answer to my questions of 12-29-09, 12:09 pm comment, you now say you have no “experience with Arkansas probate law…”. So now, I can’t help but wonder what prompted you to offer your earlier comments? Could you find access/contact with other sources who/which do have experience with Arkansas probate law that could answer my questions?

    You say, “common law has a strong tradition against disinheriting children”, yet I would contend that common law has a stronger “tradition” of upholding the intents of the testator. Indeed, it is not the “law” that disinherits children, it is testators that do so. Therefore, should it not remain the duty of the courts to execute as closely as possible, the testator’s written stated intents, rather than for the court to presume to interpret what the court thinks the testator should have done based on blanket statutes such as the so-called “after-born statute”?

    Being that the right of property has historically been regarded as sacred and inviolate, then if a father errs in accurately stating/writing his own intentions, then that father’s goods should still have to be subject to “what is written”, or to “adjust for” what that court “thinks” was “thoughtlessness”, opens the door for all kinds of abuse and potential disregard or distortion of the intents of the deceased. It must be honestly admitted, that for an “after-born statute” such as is the subject of this discussion to even be remotely valid, then shouldn’t every citizen in the respective state to which it applies, at some time before the making of a will, receive certified notification of such a “rule” of law–for it to be applicable to his respective testament?! Of the general populace, I doubt that most of them have such knowledge or awareness of “after-born” statutes.

    Can “after-born” Mark prove that his father Elbert was depending on that statute to cover him? What kind of relationship did Elbert and Mark have? Did Elbert trust Irma? Had Irma forgotten about the will? Did Elbert and Robert feel he is entitled to the provisions of the will? Was Robert’s “finding” of the will accidental or was he intentionally looking for it? What was Robert’s relationship to Elbert’s property at the time of Elbert’s death?

    In your original 12-10-09 comment, you mention that Elbert and Irma’s will was signed in 1958–that’s 52 years ago! But, it was nephew Robert that “found” the will?! Where and why him?! Irma obviously acknowledged its authenticity, but now wants it disregarded, even though it will likely significantly diminish her and her daughter’s inheritance in order for son Mark to inherit now instead of after the death of his mother, as may have been the intention of Elbert? Does that not raise someone’s eyebrows besides mine? In my opinion, there are too many oddities about this to just sweep it under the Gregory/”after-born” rug. And my further opinion is that it needs to be ruled out that this is not a “use” of the after-born statute, just as an opportunity to take from Robert what Elbert intended him to have. I wonder, has the “after-born” Mark been deposed concerning his knowledge/previous awareness of the will? What about Irma and Deborah and Robert? Was there any investigation concerning the possibility of the making of a later will? As you can see from my queries, I strongly recommend exactly following the written terms of an authentic will without subjecting it to all kinds of statutory interpretations and judicial suppositions. To misinterpret and subsequently misappropriate a person’s will essentially is a form of theft. It is better for a testator to die in his own error, than for heirs and/or courts to steal from the testator what he can no longer defend or direct. Ownership of property should forever be defended by the courts of a free nation as inviolate. Inheritance of property, to use your words, Harry, is “only an expectancy”. To protect the property of the deceased, the written words/testament of the deceased must be honored, not manipulated.

    I believe it is incorrect to say that Elbert and Irma’s will “disinherited” Mark. Because, if Elbert’s will is executed as written, when Irma dies, Mark may inherit from Irma his portion of what Elbert left to Irma, unless Irma should decide to disinherit Mark. It is as believable to me that Elbert intended for Irma’s portion to cover Mark, as much if not more, than it is believable that Elbert would have wanted to subsequently disinherit Robert, when he originally for some reason appointed Robert to receive equal inheritance with his wife Irma. There’s got to be a reason for the Elbert/Robert relationship that is not being divulged in this unique set of circumstances. Let’s hope the state’s high court will get to the bottom of the matter.

    This area of law is highly intriguing to me and I will follow your posted comments with continued interested until there is a settlement. I hope others looking in will also lend their experience and/or insights into this case that I consider to be extremely potentially vulnerable to judicial error and/or very eligible for judicial correction. Thanks for providing this venue.

    • Christy,
      My main purpose in writing about the case of Elbert and Irma is to emphasize why people should update their wills or living trusts when they have additional children.

      I appreciate that you’re intrigued by this area of law, even though I am not. If you want to learn more, you might use a search engine for such terms as “pretermitted heir” or “afterborn child.” I believe that you’ll find that your ideas about property rights historically being “sacred and inviolate” may need to be refined to account for the manner in which European legal systems have protected the rights of children to inherit, despite having been left out of wills.

      According to the Arkansas Supreme Court’s docket (, Robert’s attorney filed a petition to have the Arkansas Supreme Court review the Court of Appeals decision. So it’s not completely over yet.

      If you have a real (rather than merely theoretical) issue relating to inheritance, you need to hire a lawyer to assist you in the state where the decedent was a resident.

  4. Harry,
    So your initiation of comments(regarding our ongoing dialogue pertaining to a case at law involving “after-born” and unnamed son, Mark, inheriting over “contractually named” nephew, Robert, in Elbert’s and Irma’s joint will) as a matter of interest is purely functional regarding your desire to use this example to encourage people everywhere to have professional wills made and to get it done. Good for you.

    Of course, that is not my chief concern in this case, though I acknowledge the need for such, I suppose. Except, something I learned somewhere along the way, keeps nagging at me, that one of the strong points of the freedom in this country, hard-fought and hard-won by our wise forefathers, was that the pursuit of life, liberty, and happiness was not to have to be subject to myriads of rules and regs that required the services of “legal professionals” in order to live and die happily and successfully. Do you promote or discourage the use of self-done will kits and the like?

    How was Elbert and Irma’s will prepared? Was it professionally prepared? Or was it just one of their own making?

    But again, my interest is in the realm of proper execution of the law. You say you believe our original system of law protects the rights of after-born children primarily? Can you supply examples and/or citations of such?

    I’m simply relying on the constitution for a basis of the issue.

    First of all, Ark. Constitution Article 2, Section 22 says, “The right of property is before and higher than any constitutional sanction…” Therefore Elbert’s right to dispose of his property in whatever way he chose, must be honored. The fact that he entered into a contract with his wife to do so in a will is established. Why he never bothered to include after-born Mark in the same will or a subsequent will is no one’s business but his. He would not have been the first father to dis-include or dis-inherit a child with or without explanation.

    Secondly, Article 2, Section 17 says, “No…law impairing the obligation of contracts shall ever be passed;”

    Thirdly, Article 2, Section 29 says, “…we declare that everything in this article{2} is excepted out of the general powers of the government, and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.”

    Is it an over-simplified deduction of mine to reason that if it is ruled in this case or allowed to stand that the “after-born statute” overcomes the joint contract of the will, we will have an unconstitutional action by our courts which action in its effect could nullify the “after-born statute”?! — which in other cases where a non-contractural will is at bar, might be a good and constitutional statute.

    Surely someone else besides you and I have insight or at least opinions on this matter of such basic importance. I encourage others to chime in.


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