Most of these United States use post-mortem probate. A person’s will is submitted for probate after his or her death. The idea is that after the testator is dead, the will is read and the testator’s estate is distributed in accordance with his wishes.

I always thought there should be some procedure to validate a will before the testator’s death, a "pre-mortem probate." 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 seems illogical that these issues have to wait for probate when the best evidence is no longer available.

Probating a will after the decedent’s death brings with it all sorts of family disputes, will contest suits, and other litigation. The worst aspect of the process is that it encourages spurious contests where unhappy beneficiaries bring actions claiming lack of capacity, fraud or undue influence, just to get a settlement. It’s the cost of their going away. Of course, even if a will contest results in no settlement or adverse verdict, the failed challenger has no responsibility to reimburse the estate for all of the costs it has been forced to incur to defend the testator’s intent. As stated by Aloysius A. Leopold and Gerry a Byer in the article, "Ante-Mortem Probate: A Viable Alternative," [T]esting the validity of the instrument after the testator’s death is the most illogical and impractical time for such scrutiny because even the simplest of errors have the unavoidable effect of destroying the validity of a will and upsetting the testator’s interests."

The alternative to a post-death probate is the "Ante-Mortem Probate." A court proceeding is held during the testator’s lifetime to validate the will. The most obvious and striking feature of this approach is that the person who has the best evidence of intention, the testator, is alive and can tell exactly what he or she intends.

Questions about the capacity of the testator can be resolved by direct testimony of the testator. The testator is there, thus able to answer questions, explain his or her intentions, correct misapprehensions and eliminate ambiguities. Beneficiaries would have to consider carefully their complaints or contests.

In some jurisdictions, guardian or conservatorship proceedings are used in an attempt to establish a life-time determination of competency and freedom from influence. While these kind of proceedings are not directly related to the validity of a will, they are related to competency issues and can provide current testimony and actual input from the testator to build a legal record. For example, in California, a posthumous challenge to a will was barred because the same issues of capacity and undue influence had already been litigated in a proceeding for guardianship while the decedent was alive. While this may provide some help, the proceeding is expensive and can be embarrassing. There should be another way.

Several states experimented with Ante-Mortem Probate alternatives in the 19th century. The uniform commissioners have considered the matter several times, in the 1930’s, the 1940’s and 1970’s. There is much discussion of the concept in academic literature. Currently, three states, Arkansas, North Dakota and Ohio, allow living probate procedures. In those states the procedure is like a will contest and results in a declaratory judgement.

There are issues that need to be resolved if pre-mortem probate is enacted. Who would receive notice of a scheduled proceeding? What kind of notice should be given? Would the decree bind beneficiaries of prior wills who did not have notice? How many times should a testator be allowed to bring another proceeding if the first probate fails?

Providing for pre-mortem probate is not a panacea. And no one recommends that port-death probate be eliminated. But there should be a way to validate a will while the testator is living to make sure the testator’s property is distributed as he or she intends.


While much is made of the importance of blogging for today’s lawyers, here is a sobering note in counterpoint.

Brian Leiter, Why Blogs Are Bad for Legal Scholarship, 116 Yale L.J. Pocket Part 53 (2006),


"Blogs, like markets, are hostage to the ignorance and irrationality of their most visible proprietors, as well as to that of their readers, and the costs of those cognitive limitations are greatest when blogs purport to critique serious scholarship, a task in which the ability to sort wheat from chaff often turns on intellectual skills that are not widely distributed, even among academics. My guess is that Judge Posner has not, understandably, spent much time actually reading the blogs that are out there. I have seen relatively little evidence of correction and refinement of ideas, facts, and scholarship, much more amplification and repetition of existing prejudices and ignorance, or, occasionally, feeding frenzies on trivial mistakes in the mainstream media. "

Tracey Rich writes  for the National Law Journal about using a company’s website against them.  Check out: Find Evidence on Your Opponent’s Web Site.  Rich reports:

"Browsing a party’s Web site will only show the information that the Web site owner currently wants visitors to see. Sometimes, the most valuable information about an opposing party is the information that has been changed or removed. Fortunately, there are ways to see older versions of Web pages. Pages that were changed recently can be viewed through Google’s cache feature. Pages that were changed months or years ago may be available through the Internet Archive, also known as the Wayback Machine. Viewing these older versions of Web pages avoids the privacy risks discussed above: The copied pages are not on the company’s Web site, so the company has no record of the researcher’s activities. "

Read about software that provides "enhanced cookie management."  Its one thing to find the information – but will your opponent know that you know?

Thank you to Disciplinary Board of the Supreme Court of Pennsylvania July 2008 Attorney E-Newsletter for pointing out this useful article. 

Addendum:  If you are interested in digital evidence, check out this ALI-ABA course:  Digital Evidence: Generation, Admissibility and Weight Considerations

Winning your estate planning malpractice case depends not only on your skills as a litigator but also on a thorough understanding of the substantive law of the case.  You need to know what is at the "top of mind" of lawyers who practice in the area.  Combine that with the explosion of information available on the Internet and you have a daunting prospect.

Jason Haven’s award-winning site has a wealth of information and resources for legal research on estate planning topics.

Check it out:  Jason E. Havens’ Legal Research for Estate Planners (LREP)