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Certainty. It’s the Holy Grail of estate planning and non-existent in any will contest. Here’s how one judge put it over a century ago:

“[P]ost mortem squabblings and contests on mental condition . . . have made a will the least secure of all human dealings, and made it doubtful whether in some regions insanity is not accepted as the normal condition of testators.”

Lloyd v. Wayne Circuit Judge, 23 N.W. 28 (Mich. 1885).

Worst Evidence Rule = NO Certainty:

All litigation is uncertain, but why are will contests especially so? Think “worst evidence rule,” a term coined by famed Yale Law professor John H. Langbein, in Will Contests, 103 Yale L.J. 2039 (1994). In most states (including Florida, see F.S. 732.518) you’re barred as a matter of law from litigating the validity of a will until after the single most important witness — the testator — is dead. Which means we’re forced to litigate these cases based in large part on the worst evidence available: the self-interested hearsay testimony of those claiming a right to the testator’s estate.

So what’s to be done? One possible solution is obtaining a final order validating a will in a guardianship proceeding while the testator is still alive; it worked in a California case I wrote about here. A better idea is adopting legislation expressly authorizing pre-death will contests.

Pre-Death Will Contest = Certainty:

State legislators have experimented with pre-death will contests for generations. According to Prof. Beyer in Will Contests – Prediction and Prevention, the first such statute was passed in 1883 in Michigan, and the National Conference of Commissioners on Uniform State Laws seriously considered the idea in the early 1980’s. As explained by Prof. Beyer, if your goal is greater certainty, a pre-death will contest or “ante-mortem probate” is your best solution.

Ante-mortem probate has the potential of greatly improving the legal system’s effective transmittal of an individual’s wealth by providing the testator with greater certainty that the testator’s desires for the distribution of property will be fulfilled and designation of fiduciaries followed according to the testator’s written declaration. Because the validity of the will would be determined prior to the testator’s death, at a time when all relevant evidence is before the court, will contests would be greatly reduced. In addition, ante-mortem probate would lead to more efficient use of scarce and valuable resources as less court time is expended dealing with spurious will contests and fewer estate funds are dissipated defending those contests.

Admittedly, ante-mortem probate is not a panacea. The ante-mortem process . . . may be extremely disruptive to the testator and the testator’s family. The testator may not wish to disclose the contents of the will or to face the potential embarrassment that may occur if testamentary capacity is litigated. Additionally, the process involves additional costs and may raise due process and conflict of laws problems. The benefits of ante-mortem probate, however, should not be withheld from the public merely because the technique contains flaws or because it may be difficult to determine the proper model to use.

Today there are four states expressly authorizing pre-death will contests by statute: Arkansas, North Dakota, Ohio and Alaska. The pro’s and con’s of these statutes is the subject of a recent article in the ABA’s Probate & Property Magazine entitled Before the Party’s Over: The Arguments For and Against Pre-Death Will Contests. In my opinion, the best part of this article is the very funny cover illustration by Max Licht. On a more serious note, anything we can do to keep up the drumbeat in favor of this much-needed legislation is a good thing, and hopefully this article gets more people thinking about it.

Lesson learned?

If you’re a working lawyer, it’s easy to dismiss talk of pre-death will contests as theoretical mumbo jumbo only academics have the luxury of fooling around with. That would be a mistake. Wrapping our heads around the “worst evidence” problem makes us better practitioners, especially when we have our estate planning hats on. If the risk of a future challenge is present, we can’t naively rely on the fact that there is no doubt the client has capacity and is acting of his own free will, we need to anticipate how the worst-evidence rule can undermine the best laid plans, and proactively stack the deck in the client’s favor through smart defensive planning. For an excellent discussion of the more commonly used defensive-planning techniques you’ll want to read Will Contests – Prediction and Prevention.