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A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code

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A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code University of Arkansas at Little Rock Law Review Volume 17 Issue 4 Article 3 1995 A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code Lawrence H. Averill Jr. Ellen B. Brantley Follow this and additional works at: https://lawrepository.ualr.edu/lawreview Part of the Estates and Trusts Commons, and the Property Law and Real Estate Commons Recommended Citation Lawrence H. Averill Jr. and Ellen B. Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. ARK. LITTLE ROCK L. REV. 631 (1995). Available at: https://lawrepository.ualr.edu/lawreview/vol17/iss4/3 This Article is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in University of Arkansas at Little Rock Law Review by an authorized editor of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. A COMPARISON OF ARKANSAS'S CURRENT LAW CONCERNING SUCCESSION, WILLS, AND OTHER DONATIVE TRANSFERS WITH ARTICLE II OF THE 1990 UNIFORM PROBATE CODE Lawrence H. Averill, Jr.* Hon. Ellen B. Brantley** Table of Contents I. GENERAL INTRODUCTION ....................................... 633 A. Scope, Purpose, and Statement of the Problem. 633 B. A Short History of the Uniform Probate Code. 635 C. Uniform Probate Code Maintenance Efforts ...... 637 D. A Short History of the Arkansas Probate Code. 638 II. INTESTATE SUCCESSION .......................................... 639 A. General Principles of Intestacy ......................... 639 B. Share of the Surviving Spouse When the Decedent Is Survived by Children .................................. 641 C. When the Decedent Leaves a Surviving Spouse But N o D escendants ............................................. 643 D. When the Decedent Leaves Descendants But No Surviving Spouse ..................................... ....... 645 E. When the Decedent Leaves No Descendants and No Surviving Spouse ...................................... 645 F . E scheat ......................................................... 647 G. Representation by Descendants - Per Stirpes and Per Capita at Each Generation ........................ 647 III. PROBLEMS OF STATUS ........................................... 650 A. Necessity of Status Determination .................... 650 B. Half-Blooded Relatives .................................... 650 C. Afterborn (Posthumous) Persons ...................... 650 D . Adopted Persons ............................................ 651 E. Nonm arital Issue ............................................ 653 F. Aliens or Noncitizens ..................................... 654 * Professor of Law and former Dean, University of Arkansas at Little Rock, Arkansas. Professor Averill is an Academic Fellow of the American College of Trusts and Estates Counsel. He is author of THE UNIFORM PROBATE CODE IN A NUTSHELL (3d ed. 1993). ** Chancellor, 5th Division; Pulaski County, Arkansas. Judge Brantley is co- author of ELLEN B. BRANTLEY & WILLIAM D. HAUGHT, ARKANSAS PROBATE (2d ed. 1993). UALR LAW JOURNAL [Vol. 17:631 G. Survivorship .................................................. 654 H. Advancements ................................................ 655 I. Debtor Heirs ................................................. 657 IV. TESTAMENTARY EXECUTION .................................... 657 A. General Considerations on Wills ...................... 657 B. The Ordinary Witnessed Will ........................... 660 C. Holographic Wills .......................................... 661 D. Dispensing Power and the Substantial Compliance Doctrine ....................................................... 663 E. Self-Proved Will ............................................ 666 F. Choice of Law as to Execution ....................... 668 G. Uniform International Wills Act ...................... 668 H. Will Preservation and Retrieval ........................ 670 I. No Contest or Claim Clauses .......................... 671 V. TESTAMENTARY REVOCATION .................................. 672 A. Revocation Generally ...................................... 672 B. Revocation by Physical Act ............................. 672 C. Revocation by Subsequent Instrument ............... 673 D. Revocation by Changed Circumstances .............. 675 E. Revival of Revoked Wills ................................ 676 VI. PARAMETERS OF THE STATUTE OF WILLS .................. 677 A. General Considerations on Parameters .............. 677 B. Incorporation by Reference ............................. 677 C. Testamentary Additions to Trusts ..................... 677 D. Events of Independent Significance ................... 678 E. References to Separate Writings .......... ....... 679 VII. PROTECTIONS FOR THE FAMILY AND RESTRICTIONS ON TESTATION .......................................................... 680 A. The Family Protections ................................... 680 1. Homestead ............................................... 681 2. lvmrpt P.r-o t A llunr .................. 1 3. Family Allowance ...................................... 682 B. Financial Protection for the Surviving Spouse .... 683 1. General Considerations ............................... 683 2. The Spouse's Elective Share ....................... 684 C. Unintentional Disinheritance of Spouses and Children ....................................................... 687 1. Unintentional Disinheritance of Spouses and Children .................................................. 687 2. Pretermitted Spouse ................................... 688 3. Pretermitted Children ................................. 689 4. Omission Based on Mistaken Belief of Death of C hild .................................................. 691 1995] ARKANSAS LAW AND UPC COMPARISON 633 VIII. RULES OF CONSTRUCTION ...................................... 692 A. Intent of the Testator ..................................... 692 B. After-Acquired Property .................................. 693 C. Choice of Law .............................................. 694 D . Lapse ........................................................... 695 E. Lapse and Will Substitutes .............................. 699 F. Ademption and Nonademption by Extinction ..... 701 G. Accessions Regarding Devises of Securities ........ 704 H. Ademption by Satisfaction .............................. 705 I. Right of Nonexoneration ................................. 707 J. Powers of Appointment .................................. 707 1. Exercise of Power of Appointment .............. 709 2. Virtual Representation and General Powers of Appointment ............................................ 711 IX. ADDITIONAL SCOPE OF THE CODE ........................... 712 A. Survivorship Duration Determinations ............... 713 B. Constructional Rules for Future Interests .......... 714 1. Survivorship ............................................. 714 2. A ntilapse ................................................. 716 3. Worthier Title .......................................... 717 4. Definition of "Heirs" ............................... 718 C. Disclaimer of Property Interests ....................... 718 D. Termination of Marital Status ......................... 718 E. Effect of Homicide ........................................ 720 F. Uniform Statutory Rule Against Perpetuities ...... 721 G. Honorary Trusts ............................................ 724 X. CONCLUSION ........................................................ 726 I. GENERAL INTRODUCTION A. Scope, Purpose, and Statement of the Problem This article compares Article II of the 1990 Uniform Probate Code,' as embodied in House Bill 1020 and Senate Bill 598,2 with 1. UNIFORM PROBATE CODE, OFFICIAL 1993 TEXT WITH COMMENTS (11th ed. 1994). 2. Except as noted, all references are to the version of the Uniform Probate Code introduced in the 1995 Arkansas State Legislative Session as H.B. 1020. As originally introduced into the 1995 Arkansas Legislative Session, H.B. 1020 and S.B. 598 were substantially a copy of the 1990 Uniform Probate Code (U.P.C.). For convenience all references to this bill will be to the U.P.C. and the last four numbers of the section, i.e., U.P.C. § 0-000 (1990) (amended 1993). Conversion to H.B. 1020 is made merely by adding the prefix "28-" to the reference. UALR LAW JOURNAL [Vol. 17:631 existing Arkansas law.3 Although Article II did not pass both houses, it is expected that it will be studied by bar committees for introduction into the 1997 legislature. Because of the pendency of this matter, the authors believed that a section by section comparison between the Uniform Probate Code and Arkansas law would be useful to 4 lawyers, legislators, and others interested in probate law. Article II contains twenty-three percent of the sections in the Code which makes it the second largest article. It includes the substantive core of what is referred to as the law of wills, intestate succession, and donative transfers. In addition to provisions dealing with how to execute a will and distribution under intestacy, it also includes provisions concerning the surviving spouse's elective share, family protections, rules of construction for wills and other donative instruments, disclaimers, the safekeeping of wills, the Rule Against Perpetuities, and other related matters.5 This coverage constitutes a 6 significant portion of the law of
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