10 Arguments Against Pre-Death (Antemortem) Probate and Will Contests

There are a handful of states that allow a person to probate a will (and challengers to contest the validity of a will) before the testator (the person enacting the will) dies. In recent years, there has been a trend to expand the practice to more states. I had an interesting discussion about this issue at the recent Heckerling conference, and I wrote this blog post to discuss why I think the practice is a bad idea.

First, some background: pre-death probate (also known as antemortem probate) is only permitted in a handful of states (including Ohio, Arkansas, North Dakota, and Alaska) because the traditional rule has been that a will doesn’t “speak” (meaning, take effect) until the death of the testator. As a result, no party had legal standing to contest the will prior to the testator’s death. The trend away from the traditional rule began several decades ago and has recently picked up some steam, as new legislation has been introduced in a handful of states in the past few years to permit antemortem probate and antemortem will contests.

While the antemortem probate schemes vary by state, in general, they permit a testator to seek a ruling from the court (while he is still alive) that his will is legally valid. Because all heirs have to be named as parties to that proceeding, it has the effect of binding any potential challengers to the determination, thereby preventing them from contesting the will at the time that the testator dies. Proponents of antemortem probate point to several benefits to the practice, including: it provides for certainty and avoids family disputes after death, it ensures that the testator can testify in favor of the will (a practice that he obviously could not do after he dies), and it discourages challenges to a will because if a person opposes the validity of the will while the testator is alive, that person would almost certainly be cut off by the testator (any may be fully disinherited in a later will, if he was not already).

Despite these claimed benefits, I think that the practice overall is detrimental. I believe that the result is an increase in litigation, which benefits estate litigators, but does not benefit society as a whole. The following are 10 reasons I don’t think antemortem probate is a wise idea:

1. It creates litigation in a context where there is no guarantee that disgruntled heirs would have actually contested the will when the testator passed away. In other words, litigation is forced on all of the heirs, when it’s possible that none of them would ever have litigated over the will under the traditional scheme.
2. The testator is forced to live with (and possibly see) litigious heirs after the litigation is over (whereas under the traditional scheme, the deceased testator at least does not have to witness his family members fighting over the will).
3. The entire proceeding could end up being a massive waste of time and resources, as the testator could always change his will later (and in fact could do so on numerous occasions).
4. It would be vastly more difficult to settle a dispute than in the traditional context whereby will contests often settle for an exchange of money (in the antemortem context, the issue at dispute is whether the will is valid or not; not what sum of money should be paid by an executor to a challenger to settle).
5. The proceeding could very well lead to the testator wanting to change his will again after the proceeding was concluded, due to opposition by a family member who may have received a bequest under the contested will (who the testator in turn wants to fully disinherit).
6. The proceeding could significantly eat into the testator’s retirement savings, whereas a conventual will challenge is defended by the executor at the expense of the estate (when the testator is already deceased and no longer needs the money).
7. The testator has to go through the stress of the proceeding (including being deposed, producing information and documents via written discovery, etc.).
8. The testator’s privacy could be significantly invaded in any litigation (during the discovery process) for what all could be a moot point anyway if the heirs would have never ended up initiating a contest under the traditional scheme.
9. It burdens the courts by expanding the concept of a declaratory judgment suit beyond what it traditionally encompasses. In the vast majority of states, for a party to bring a declaratory judgment action, there has to be an “actual controversy”. Under antemortem probate, there is no actual controversy, yet the testator still has to file a judicial proceeding.
10. It narrows the scope of facts and conduct that could be put in evidence, thereby rendering any judgment less reflective of the actual truth. This is because parties can’t put on evidence of anyone’s conduct later on, up to the time of the testator’s death (which they could try to put at issue in a normal will contest), which could be probative of a pattern of undue influence that existed at the time of the will execution.