Should Pre-Death Will Contests Be Permitted?

Floridians are unable to contest the validity of a will before the testator’s death. See Fla. Stat. § 732.518. There are several good reasons for this rule, and a majority of states prohibit such litigation. The primary reason for not allowing pre-death will contests is that a will is revocable-the litigation could become meaningless if the testator changes how he or she wants to dispose of the property after death, and the cost of legal fees and judicial resources would be wasted. Another reason for prohibiting such litigation is that many testators keep their wills confidential before their death. Four states have expressly allowed pre-death will contests (Alaska, Arkansas, North Dakota, and Ohio), and three of those states require the testator to name all beneficiaries named in the will in the suit. While such a requirement is logical in that it binds all of the beneficiaries to the judgment, it also forces the testator to reveal who is, and who is not, named in the will. Finally, if a beneficiary named in the will knows that there may be a reason that the will is invalid, such as a lack of mental capacity on the part of the testator, he or she may not raise that issue in a declaratory action in order to protect the inheritance.

Although there are several reasons for prohibiting pre-death will contests, there are a number of reasons for making them legal as well. The main assertions in will contests involve the testator’s mental capacity, his or her intentions, or whether the will was a result of duress, fraud, mistake, or undue influence. The best evidence for these issues would come from the testator, who obviously cannot testify after his or her death. In states where pre-death will contests are barred, litigants are left with what has been termed the “worst-evidence rule,” see John H. Langbein, Will Contests, 103 Yale L.J. 2039, 2044 (1994), meaning litigants must use secondary information to determine these issues. Other benefits from a pre-death will contest are that the testator would know whether or not the will was invalid, and could remedy any issues with the will. This way, he or she could ensure that his or her estate planning efforts were effective, and are not undone after it is too late.

While practitioners and academics debate the pros and cons of the issue, as the law stands in Florida and many other states, any attempts to contest a testator’s will pre-death will be futile. Unless the debate results in legislation to change the current state of the law, testators should ensure that they consult an attorney to ensure the validity and clarity of their will, and beneficiaries must wait until the testator’s death to determine whether or not there is a potential issue regarding the will.

If you or someone you know believes that a testator’s will is invalid for lack of capacity, duress, fraud, or undue influence, please do not hesitate to contact the attorneys at Chepenik Trushin LLP, who are experienced in such matters and happy to discuss your case with you.