Background
Texas does not allow a pre-death (Antemortem) will contest. 254 sw2 862. As long as the testator is alive, Texas considers his will changeable and therefore, a will contest would be a waste of time. However, a few states allow pre-death will contest including Ohio, Arkansas, North Dakota, and Alaska. A few states like New Jersey are considering allowing them.
10 Reasons Not To Allow Pre-Death Will Contest
Will Sleeth, an attorney in Williamsburg, Va wrote an article about pre-death will contest. He explained what it is:
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…
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 (an(d) (he) may be fully disinherited in a later will, if he was not already).
Mr. Sleeth goes on to state that he believes the practice is detrimental. He list 10 reasons not to allow pre-death will contest:
- 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.
- 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).
- 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).
- 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).
- 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).
- 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).
- The testator has to go through the stress of the proceeding (including being deposed, producing information and documents via written discovery, etc.).
- 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.
- 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.
- 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.
As I said at the beginning, Texas does not allow pre-death will contest. 254 sw2 862. I agree with Mr. Sleeth’s 10 reason not to allow pre-death will contest.
