The Arkansas Supreme Court held that the law of the state where real property is located—not the testator’s Canadian domicile—governs will construction, and the testator’s common-law wife failed to prove her status under Alberta law, leaving his omitted children entitled to inherit the Arkansas real estate as pretermitted heirs.
All Language Alliance, Inc. provides archival research and certified legal translation services to locate and authenticate mission-critical historical records for cross-border probate, international litigation, estate administration, right of publicity claims. Our multilingual researchers and certified translators work with typed and handwritten documents in French, German, Spanish, Chinese, Hebrew, Ottoman Turkish, Danish, Armenian, Polish, and dozens of other foreign languages — delivering court-admissible translations. The case of Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003), presents a compelling illustration of how conflicts of laws, family relationships, and probate statutes intersect when a nonresident decedent owns real property in another jurisdiction. Earle L. Berrell, a resident of Alberta, Canada, executed a holographic will in 1994 leaving all his property—including real estate located in Pulaski County, Arkansas—to Erika Arndt, a woman with whom he had been living since 1992.
The will made no mention whatsoever of Berrell’s two children from previous marriages, Bonita Berrell Carrigo and Edward James Berrell. After Berrell died in 1997, Arndt initiated probate proceedings in Alberta and an ancillary probate action in Arkansas. The Arkansas trial court ultimately determined that the children were pretermitted heirs under Arkansas law, entitling them to inherit the Arkansas real property as if Berrell had died intestate. The court also found that Arndt had failed to prove she was Berrell’s common-law wife under Alberta law, thus denying her a dower interest. The Arkansas Supreme Court affirmed on these points and dismissed an appeal regarding attorney’s fees for lack of jurisdiction.
The Key Legal Issue: Which State’s Law Governs the Will?
The first and perhaps most fundamental question on appeal was whether Arkansas or Alberta law should govern the interpretation of Berrell’s will with respect to the Arkansas real property. Appellants—Sharlett Craig (personal representative of the estate) and Erika Arndt—argued that because the will was validly executed under Alberta law, the law of the testator’s domicile should control, and under that law, Arndt should take all property as the will provided. They further contended that the ancillary nature of the Arkansas proceeding favored applying the domiciliary law.
The Arkansas Supreme Court rejected this argument decisively, adhering to a long-established principle in American conflicts law: the law of the situs (the place where real property is located) governs the interpretation and effect of a will devising that property. The court cited the Restatement (Second) of Conflict of Laws § 240 and its own precedents, including Layman v. Hodnett, Crossett Lumber Co. v. Files, and Bank of Oak Grove v. Wilmot State Bank, all of which stand for the proposition that Arkansas courts will construe a will of Arkansas land under Arkansas law regardless of where the will was executed or where the testator lived. The court noted that while some states may follow a different rule, Arkansas had “consistently followed” the situs rule for over a century.
Appellants attempted to find refuge in two Arkansas probate statutes. First, Ark. Code Ann. § 28-25-105 provides that a foreign will validly executed in accordance with the law of the place of execution or the testator’s domicile “shall have the same force and effect in this state as if executed in this state.” The court interpreted this language not as a command to apply foreign substantive law, but merely as a rule of formal validity—placing foreign wills on equal footing with domestic wills. Since Arkansas wills are subject to the pretermitted heir statute (Ark. Code Ann. § 28-39-407(b)), foreign wills must be as well. Second, the ancillary probate statutes (Ark. Code Ann. §§ 28-42-101 to -111) specifically provide that the same law applicable to resident decedents applies to ancillary administration of nonresident decedents. Thus, neither statute compelled a different result.
In practical terms, this holding means that any testator owning real property in Arkansas—even one domiciled in a foreign country—cannot avoid Arkansas’s pretermitted heir law simply by executing a will elsewhere. The policy goal is clear: Arkansas has a strong interest in regulating the descent of land within its borders and protecting omitted children from inadvertent disinheritance, regardless of where the testator happened to live.
The Common Law Marriage Claim
Appellants also argued that even if the children took the real property as pretermitted heirs, Arndt should still receive a dower interest as Berrell’s common law spouse. The trial court initially found that Arndt was a common law wife based on stipulated facts, but after appellees objected, the court held a further hearing and reversed itself, finding insufficient proof. The Arkansas Supreme Court affirmed.
Arkansas does not permit the creation of common law marriages within the state, but under Ark. Code Ann. § 9-11-107(a), it will recognize a common law marriage validly contracted in another state or country. The burden of proof rests on the party seeking recognition—here, Arndt—to prove by a preponderance of the evidence that (1) the foreign jurisdiction recognizes common law marriage, (2) what the requirements are for such a marriage, and (3) that those requirements were met at the time of the decedent’s death.
At the hearing, appellants conceded that Alberta had no statutory law recognizing common law marriage. They pointed instead to a “movement” in Alberta courts to grant common law spouses certain rights. However, the cases they relied upon proved unavailing. In Pauliuk v. Pauliuk, the court granted relief to a common law partner on equitable grounds—because she had cared for the decedent during his terminal illness—not because she had a legal claim as a spouse. In Armstrong v. McLaughlin Estate, the trial court’s decision to include common law spouses under Alberta’s Family Relief Act was reversed by the Alberta Court of Appeal. And in Taylor v. Rossu (the first Rossu decision), while the Alberta Queen’s Bench did find part of the Domestic Relations Act unconstitutional for excluding common law spouses, the specific definition it adopted required cohabitation for three years or a permanent relationship with a child. Berrell and Arndt had cohabitated as man and wife for only twenty two months after Berrell’s divorce became final in January 1996, and they had no children together. Moreover, the Alberta Court of Appeal later suspended that ruling and left the definition of “spouse” to the legislature. Because Berrell died in October 1997, the court found that appellants had not carried their burden to show that Arndt would have been recognized as a common law spouse under Alberta law as it existed at the time of his death.
Appellants also pointed to the fact that Arndt was listed as Berrell’s common law spouse in documents filed with the Alberta probate court and that she received a survivor’s pension under the Canada Pension Plan (CPP). The court dismissed this proof as insufficient. The CPP handbook expressly stated that recognition of a common law spouse was “for the purpose of the CPP” only, not for broader inheritance rights. And the Alberta probate documents were self serving filings by Arndt and her attorneys; there was no declaration from any Canadian court that she had been adjudicated a common law spouse. Without competent evidence that Alberta law actually conferred spousal status for inheritance purposes, the trial court’s finding was not clearly erroneous.
Proving Canadian Law: No Expert Required
A notable aspect of Craig v. Carrigo is that the Arkansas courts interpreted Alberta law without any expert witness on Canadian law. Typically, foreign law must be proved through expert testimony or certified sources. Here, however, the parties themselves submitted Alberta case law and conceded that Alberta had no statutory common law marriage. Neither side objected to the trial court reading and analyzing those decisions directly, and the Arkansas Supreme Court did the same on appeal.
The Pretermitted Heir Statute and Testator’s Intent
Appellants’ third argument invoked the familiar principle that a testator’s expressed intent should prevail. They urged that because Berrell’s will left “all” his property to Arndt, the court should honor that intent rather than apply the pretermitted heir statute. The Arkansas Supreme Court rejected this argument as well, noting that the very purpose of Ark. Code Ann. § 28-39-407(b) is to avoid inadvertent omissions of children unless the will itself shows an intent to disinherit. The court quoted Robinson v. Mays for the proposition that when a will fails to mention children, the omission is presumed unintentional “regardless of the testator’s intent.” The only way to overcome that presumption is if the will itself contains language explaining the omission. Here, Berrell’s will said nothing about his children. Appellants attempted to introduce language from a prior, revoked will that did mention the children, but the court held that a revoked will has no evidentiary value in construing a later will. Accordingly, the children were entitled to inherit as if Berrell had died intestate.
Attorney’s Fees: A Jurisdictional Lesson
Finally, appellants challenged the trial court’s award of attorney’s fees and costs to the appellees, to be paid from the estate. The Arkansas Supreme Court did not reach the merits of this argument because it lacked jurisdiction. The order determining heirship was entered on September 10, 2001, and appellants filed a timely notice of appeal from that order on October 5, 2001. However, the fee order was not entered until March 14, 2002, and an amended fee order on April 15, 2002. Appellants never filed a notice of appeal from either fee order. Under Arkansas law, an order awarding attorney’s fees entered after a final judgment is a collateral matter; a party wishing to challenge it must file a separate notice of appeal. The failure to do so deprived the appellate court of jurisdiction. Appellants’ argument that the original notice of appeal covered “the entire record” was unavailing. The court therefore dismissed that portion of the appeal.
Planning Across Borders
Craig v. Carrigo stands as an important precedent for multi jurisdictional estate planning and probate litigation. First, it reaffirms the situs rule: real property located in Arkansas will be distributed according to Arkansas law, even if the decedent was a nonresident and the will was validly executed elsewhere. Second, it demonstrates the difficulty of proving a foreign common law marriage when the foreign jurisdiction’s law is uncertain or evolving, and when self serving documents or federal pension designations cannot substitute for a judicial determination of spousal status. Third, it underscores that the pretermitted heir statute is a strong, prophylactic rule that presumes omission of a child is accidental unless the will itself says otherwise—prior wills or extrinsic evidence of intent are irrelevant. Finally, the case serves as a procedural reminder: attorney’s fee awards are collateral matters requiring separate notices of appeal. For practitioners, the lesson is clear: when a client owns real property in multiple states or countries, careful, situs specific planning is essential to avoid unintended disinheritance of children or the failure of a spousal claim.
Case Discussed:
Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003).