dissenting. I respectfully dissent. I think that, on the facts of this case, the probate court should have considered the proffered extrinsic evidence in order to determine the true intent of the decedent regarding the disposition of his life insurance proceeds.
The decedent executed his will in his attorney’s office in Benton on March 25, 1988. The will clearly provided that the proceeds from the decedent’s life insurance policies first be used to pay certain expenses and that the remainder then be divided equally between his wife (appellee) and his three children from a former marriage (appellants). Immediately upon leaving his attorney’s office, the decedent drove to the Bryant, Arkansas, mayor’s office. There, within approximately one-half hour after executing his will, the decedent signed a beneficiary designation form covering the same insurance proceeds. This form, however, provided for a different disposition of the proceeds: it designated the decedent’s wife as “primary” beneficiary and his three children as “contingent” beneficiaries. All parties agree, as do I, that neither document, standing alone, is ambiguous.
When appellee, individually, claimed all of the insurance proceeds upon the decedent’s death, appellants objected noting the conflict between their father’s will and the beneficiary designation form. The probate court essentially held that, because the beneficiary designation form was executed “after” the will, the beneficiary designation form must control. Finding that form unambiguous, the court refused to consider extrinsic evidence of the decedent’s true intent regarding disposition of the insurance proceeds.
Appellee’s attorneys, and apparently this court’s affirming judges, take the position that the same result would obtain had the decedent executed the beneficiary form thirty seconds after executing the will while still seated across the desk from his attorney. This is taking the concept of “last expression” too far. In the law of contracts, it is clear that when the parties’ agreement is embraced in two or more written instruments, all of the instruments must be considered together to determine the intent of the parties. See Lindell Square Limited Partnership v. Savers Federal Savings and Loan Assoc., 27 Ark. App. 66, 766 S.W.2d 41 (1989); Integon Life Insurance Corp. v. Vandegrift, 11 Ark. App. 270, 669 S.W.2d 492 (1984). In my opinion, this same idea should be applicable to a situation where, as here, two instruments of a testamentary nature, executed contemporaneously,1 each purport to provide for the disposition of the same asset. While the will and beneficiary form in this case are unambiguous when either is read individually, they directly conflict when read together, and extrinsic evidence should be admissible to determine the decedent’s true intent.
Rogers, J., joins in this dissent. Mayfield, J., joins in the result reached in this dissent.While defining “contemporaneously” may at times prove difficult, under the facts of this case, I believe it clear that these two documents were so executed.