Kidwell v. Rhew

Irene Winchester established a revocable inter vivos trust in which she named her daughter, Margie Rhew (defendant), as successor trustee after her death. Irene never executed a will and died intestate. Winchester’s other daughter, Renda Kidwell was appointed administrator of Winchester’s estate and Kidwell sought to recover certain assets that had been conveyed to the trust during Winchester’s lifetime into the intestate estate. Relying on the pretermitted-heir statute, Kidwell also requested an injunction to prevent Rhew from disposing of the disputed property and asserted that the pretermitted-heir statute should be applied to dispositions under will substitutes such as an inter vivos trust. The pretermitted-heir statute provided that if a child of the testator living “at the time of the execution of a will,” is omitted or not provided for in the will, may recover an intestate share of the estate. The circuit court denied Kidwell’s request to receive an intestate share of Winchester’s estate under the pretermitted-heir statute, removed Kidwell as administrator and closed the probate estate. Kidwell appealed to the Supreme Court of Arkansas, asserting that a will containing the same terms as the Trust would be subject to the pretermitted-heir statute and that the court should adopt the reasoning of the Restatement (Second) of Property, Donative Transfers §34.2 (1992) which allows a pretermitted-heir to receive a share of assets transferred under a will substitute.