## Facts

- Nettie Frost executed a purported nonholographic will in a Memphis hospital on February 3, 1992, and died the next day.
- Larry Burns, named executor and sole beneficiary under the instrument, sought probate; Frost’s nephews and a niece contested the will.
- Around noon, Frost asked Jewell Burns to sign the will as a witness; Jewell signed in Frost’s presence.
- At the time Jewell signed, Frost had not yet signed the will, and Frost later signed several hours afterward when Jewell was not present.
- At approximately 5:00 p.m., Frost signed the will in the presence of Ethel Pettus and Faye Burns; Pettus signed as a witness in Frost’s presence, but Faye Burns did not sign.
- Jewell Burns testified unequivocally that Frost’s signature was not on the will when Jewell signed and that Jewell never saw Frost again.
- The probate court held the will was not validly executed under Ark. Code Ann. § 28-25-103 and ordered administration by intestacy; Burns appealed.

## Issues

1. Whether a will is validly executed under Ark. Code Ann. § 28-25-103 when one purported witness signs before the testatrix signs and never witnesses the signing or an acknowledgment, leaving only one qualifying attesting witness present at execution.

## Decision

- The Arkansas Supreme Court affirmed the probate court’s denial of probate.
- The court held the will was not validly executed because Frost did not sign or acknowledge her signature in the presence of two attesting witnesses.
- Jewell Burns did not qualify as an attesting witness because she neither saw Frost sign nor heard Frost acknowledge a prior signature.
- Substantial-compliance arguments did not apply where direct, uncontroverted testimony showed failure to meet the statutory presence and attestation requirements.

## Legal Principles

- A nonholographic will must be signed by the testator and at least two witnesses.
- The testator must declare the instrument to be a will and either sign it or acknowledge a prior signature, and that act must occur in the presence of two or more attesting witnesses.
- An attesting witness must observe the testator’s signing or observe the signature and hear the testator acknowledge it.
- A person who signs as a “witness” before the testator signs, and who never witnesses signing or acknowledgment, cannot satisfy the statutory attestation requirement.
- Where affirmative evidence establishes noncompliance with execution formalities, presumptions or substantial-compliance approaches cannot validate the instrument.

## Conclusion

Because the testatrix executed the will in the presence of only one qualifying attesting witness and the other purported witness did not witness signing or acknowledgment, the instrument failed Arkansas’s statutory execution requirements and was properly denied probate, requiring intestate administration.


Burns v. Adamson, 313 Ark. 281, 854 S.W.2d 723 (Ark. 1993)