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.