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Florida law couldn’t be clearer, F.S. 732.518 tells us in no uncertain terms that you can’t contest a will until after the testator dies. But that doesn’t necessarily mean you can’t preempt a will contest before the testator dies.

For example, suppose you’re working with an older client with diminishing capacity whose will is sure to be contested.  What if you initiated a voluntary guardianship proceeding pursuant to F.S. 744.341 and obtained a final judgment, after a hearing in which anyone who might contest the estate plan was given notice and an opportunity to be heard, specifically approving the ward’s estate plan (be it a will or trust or some other non-probate transfer) and specifically finding that it is NOT the product of undue influence, fraud, etc?  Unlike in a traditional post-death will contest, you’d have the actual testator in front of the judge testifying as to the validity of his testamentary documents.  This judgment should collaterally estopp re-litigation of these same issues in a post-death inheritance case involving any of the same parties that were parties to the original guardianship proceeding. Presto! Inheritance litigation’s been preempted.

That’s basically what happened in Murphy v. Murphy, 164 Cal. App. 4th 376 (2008), a California case that received national attention as a possible roadmap for delivering that one thing most estate planning clients with unorthodox testamentary wishes want most of all: certainty their estate plan won’t be invalidated by a court after they’re dead and no longer around to personally defend its validity. As explained in Barred by Lunatics Law, a short piece by Chicago probate litigator Samantha E. Weissbluth:

The decision, in Murphy v. Murphy, 164 Cal. App. 4th 376 (Cal. App. 1st Dist., June 26, 2008), held that a posthumous challenge to a will was barred by collateral estoppel insofar as those issues were in fact litigated or could have been litigated in a substituted judgment proceeding while the decedent was still alive. …

The lesson here is that court approval of an individual’s estate plan when that individual is under a conservatorship will protect the plan against any posthumous contest to it (assuming, of course, that interested parties receive notice of the conservator’s petition to approve the plan).

Those of you with clients in dicey family situations in which you worry about a posthumous contest might want to weigh the risks, costs and public nature of a conservatorship proceeding (or some kind of declaratory judgment action if permitted in your state) to try and bulletproof your client’s plan.

And, attorneys representing clients disgruntled by a now incapacitated relative’s estate plan should certainly come armed and ready for battle upon receiving notice of an action for court approval of that plan.