## Facts

- Irene Winchester created the “Irene Winchester Revocable Trust” in January 2000, naming herself as trustee and her daughter Margie Rhew as successor trustee at Winchester’s death.
- During Winchester’s lifetime, assets (including real property in Jackson and White Counties) were transferred into the trust.
- Winchester died intestate on March 14, 2004, leaving no will.
- Renda Kidwell, another daughter, was appointed special administrator of Winchester’s estate in October 2005.
- Kidwell petitioned the probate division for an injunction to prevent Rhew, as trustee, from disposing of trust property pending a determination of “rightful ownership.”
- Kidwell argued that Arkansas’s pretermitted-heir statute, Ark. Code Ann. § 28-39-407(b), should apply to will substitutes, including a revocable inter vivos trust, so that an omitted child could recover an intestate share from trust assets.

## Issues

1. Whether Ark. Code Ann. § 28-39-407(b), which grants relief to a child omitted from a will, applies to a revocable inter vivos trust used as a will substitute.
2. Whether a court may extend the statute’s coverage to trusts based on functional equivalence, the Restatement approach, or policy considerations.

## Decision

- The Arkansas Supreme Court affirmed the circuit court.
- The court held that Ark. Code Ann. § 28-39-407(b) applies only to omissions in a will and does not apply to revocable inter vivos trusts created during the settlor’s lifetime.
- The order denying Kidwell an intestate share from trust assets, discharging her as special administrator, and closing the estate was upheld.

## Legal Principles

- When statutory language is plain and unambiguous, courts apply the statute as written and do not add terms not included by the legislature.
- Ark. Code Ann. § 28-39-407(b) is limited by its text to a “will” and does not reach nonprobate transfers through inter vivos trusts.
- Courts will not expand statutorily created probate remedies to trust instruments absent legislative authorization, even if the trust functions as a will substitute.
- Statutory interpretation is reviewed de novo, with legislative intent primarily derived from the statute’s language.

## Conclusion

The court refused to treat a revocable inter vivos trust as a will for purposes of the pretermitted-heir statute, holding that the statute’s remedy for an omitted child is confined to wills and cannot be judicially extended to trust assets.


Kidwell v. Rhew, 268 S.W.3d 309 (Ark. 2007)