Understanding Procurement Under Arkansas Law

In estate, trust, and probate litigation, “procurement” generally refers to situations where a beneficiary is alleged to have actively participated in the creation of a will, trust, deed, beneficiary designation, etc. in a way that benefits them. When procurement is proven, in Arkansas the burden of proof may shift to the beneficiary to show that the document was validly executed and free from undue influence. 

What Is Procurement?

• Definition:  Procurement occurs when a beneficiary is directly involved in drafting, preparing, or arranging for the execution of a testamentary or similar documents that benefits them in some way (perhaps they receive a parcel of property, gain a larger share under a will or trust, become the payable-on-death or other beneficiary of an account, etc.).

• Legal significance:  Arkansas courts treat procurement as a “red flag” for undue influence. If procurement is established, the burden of proof shifts to the beneficiary to demonstrate that the testator acted freely and voluntarily.

Shifting Burden of Proof

• Normally, the challenger must prove undue influence or lack of capacity, which can be difficult. 

• However, if procurement is shown, the presumption can flip and the beneficiary may be required to prove the will, trust, deed, beneficiary designation, etc. is valid.

• This shift is critical in litigation because it forces the alleged influencer to defend their involvement rather than leaving the challenger to prove misconduct.

Examples Courts Often Consider Evidence of Procurement

• Drafting or arranging the will/trust:  Beneficiary hires the attorney or provides instructions.

• Selecting witnesses or notary:  Beneficiary chooses who will be present at execution.

• Transporting the testator:  Beneficiary drives the testator to the lawyer’s office or execution ceremony.

• Presence at execution:  Beneficiary is in the room when the will or trust is signed can be viewed with suspicion.

• Knowledge of contents:  Beneficiary knows the terms of the document before execution.

• Isolation of testator:  Beneficiary limits access to the testator by other family members and loved ones.

• Payment of legal fees:  Beneficiary pays for the attorney who drafts the will.

The foregoing list is by no means exhaustive, and many other facts and circumstances can evidence and provide a basis for procurement.

Situations That Might Not Constitute Procurement

• Mere presence:  Simply being in the room when a will is signed, without more, may not be enough.

• General assistance:  Helping an elderly parent with transportation or scheduling appointments, without directing the legal process, may not rise to procurement.

• Family involvement:  Children often assist aging parents; courts distinguish between normal caregiving and manipulative involvement.

• Beneficiary status alone:  Being named in a will or trust is not procurement unless coupled with active participation in its creation.

Litigation Implications

• Strategic leverage:  Alleging procurement can shift the burden of proof, giving challengers a stronger legal position and making a hard case easier to prove.

• Fact-intensive inquiry:  Courts generally examine the totality of the circumstances---who contacted the lawyer, who paid fees, who was present, whether the testator was isolated, etc.---rather than focusing upon one or two single facts or circumstances.   

• Common disputes:  Procurement claims often arise in blended families, caregiver-beneficiary relationships, or cases involving sudden changes to estate plans.

Conclusion

Procurement under Arkansas law can be a powerful doctrine in estate, trust, and probate litigation.  It basically recognizes that when a beneficiary plays too large a role in shaping the outcome of the asset owner’s document disposing of property, the fairness of that instrument is suspect.

By shifting the burden of proof, Arkansas courts ensure that beneficiaries must demonstrate the absence of undue influence.  For litigants, understanding what facts and circumstances do—and do not—constitute procurement is essential to building or defending a case in some types of inheritance disputes.

Matt House can be contacted by telephone at 501-372-6555, by e-mail at mhouse@jamesandhouse.com, by facsimile at 501-372-6333, or by regular mail at James, House, Swann & Downing, P.A., Post Office Box 3585, Little Rock, Arkansas 72203.