Pre-Mortem Will Contests

Can a will be contested while the testator (person who sets up the will) is still alive? Different states answer this question in varying ways. The traditional view is that a will contest is not “ripe” until a testator dies, because a will does not “speak” until death. In the past, courts have refused to hear pre-mortem will contests because to do so would mean expending resources on a claim that could be rendered moot by the testator’s subsequent amendment or revocation of the will.

Over the past several years, though, four states – Alaska, Arkansas, North Dakota and Ohio – have enacted statutes expressly allowing the pre-death validation of wills. Once a will is validated by the court, it can’t be contested after the testator’s death. Does this mark a nationwide trend toward allowing pre-mortem will contests?

Some states, New York included, have affirmatively rejected the idea in keeping with the traditional approach.

In a few states that don’t expressly allow pre-death validation, though, there does seem to be a subtle trend toward the recognition of certain pre-mortem claims concerning wills.

In California, for example, the traditional rule still stands, but an exception has been carved out that applies to substituted judgment proceedings. In a California substituted judgment proceeding, if a conservator (an outside party) can establish that a conservatee lacks testamentary capacity, that conservator can perform certain estate planning functions on behalf of the conservatee (a person that lacks sufficient capacity to act on his/her own behalf), including making a will. The conservator can then have the court validate the estate plan he or she has put in place for the conservatee. Once a probate court has validated a will as part of a substituted judgment proceeding, the issues decided in that proceeding are res judicata (settled). After the testator’s death, the pre-validated will can’t be contested.

In New Jersey, too, there seems to be a move toward allowing pre-death will contests, particularly where undue influence or lack of testamentary capacity are at issue.

It will be interesting to see how the states’ treatment of pre-mortem will litigation develops, and whether more states adopt the approach taken by Alaska, Arkansas, North Dakota and Ohio.

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