I always thought there should be some procedure to validate a will before the testator’s death. After all, the testator is the best source of evidence about his or her intent. And the best time to assess a testator’s capacity or susceptibility to undue influence is at the time the will is made, right? It always seemed bass-ackwards that these issues had to wait for probate when the best evidence was no longer available. Maybe not anymore – if the theory of this California case is adopted in other jurisdictions:
This excellent article is a must read:
"Barred by Lunatics Law: How a preexisting substituted judgment order can preclude posthumous challenges to a will in California (and possibly elsewhere): the lesson of Murphy v. Murphy" By Samantha E. Weissbluth, senior counsel, and John P. Mounce, summer associate, Foley & Lardner LLP, Chicago, published in "Trusts and Estate Fiduciary Litigation Update," August 20, 2008
The authors describe the case: "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 common law substituted judgment doctrine as applied to property issues dates back to the English Lord John Scott Eldon’s Court of Chancery in the early 1800s. It was built upon a tradition of the king holding for safekeeping the property of “lunatics” within his realm."
In Murphy, a son, William Jr., was disinherited. The holding, as reported by the authors:
"On appeal, the court found that William Jr. was collaterally estopped from litigating the validity of his father’s estate plan—because he had had the opportunity to do so in the substituted judgment proceeding.
The court first noted that the issues presented by William Jr.’s claim (undue influence, fraud and the existence of the oral testamentary agreement) involved the same underlying “factual allegations” as the issues under consideration at the substituted judgment proceeding, even though they weren’t actually litigated there."
The court, with a rather long chain of reasoning, concluded that any matter that was “within the scope of the action, related to the subject-matter and relevant to the issues” was close enough to be barred, and William Jr.’s claims met such standards.
"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."