Leaving an estate plan can provide peace of mind that a person's wishes will be respected and carried out when they are no longer around to care for and provide for their loved ones. Indeed, many estate plans are implemented just as flawlessly as the person who created it intended. There are, however, no shortage of estate plans that become tied up in lengthy and costly litigation as a result of will or trust contest actions alleging that the testator either did not have capacity to execute the estate plan or was unduly influenced by another person in making the estate plan. In these instances, the challenges have historically been made after the testator has already passed away. This is due to the fact that the laws of most states employ purely post-death probate procedures, which only allow the testator's mental capacity to be considered after death. The inherent flaw then becomes that the person best suited to confirm his or her testamentary wishes is no longer alive to consult about it.
North Dakota, Ohio, Arkansas and Alaska have enacted pre-death or “ante-mortem” probate laws that authorize some form of lifetime will validation. These laws permit testators to proactively seek a court declaration as to the validity of their wills during their lifetimes, thereby reducing the likelihood of a will contest after their death. With the exception of Alaska these laws have been in existence for some time, having had the most frequent use in Ohio while getting little to no use in North Dakota and Arkansas. Alaska sparked a reemergence of interest in pre-death probate legislation in 2010 when it adopted a broader version of the ante-mortem probate statute. In addition to wills, the Alaska statute authorizes the court to declare the validity of trusts during the lifetime of the trustor. The validation proceedings may either be initiated by the testator or any interested person with the testator’s consent. Incidentally, Alaska will entertain pre-death probate proceedings even when the testator resides in another state or has no connection to Alaska. In 2011, the Nevada legislature considered similar ante-mortem probate legislature, but it failed to pass.
Whether Nevada and the other currently “post-mortem” probate states will ultimately enact pre-death probate legislation remains to be seen. In such states, there continue to be a range of methods that may be invoked when setting up the estate plan to lessen the potential for a will or trust contest later. Included in these methods are: self-proving wills, no-contest or "in terrorem" clauses, and videotaped execution ceremonies, to name a few. Individuals who are concerned that a will or trust contest might interfere with his or her carefully crafted estate plan should speak candidly to the attorney about the options available to safeguard it from unwanted attacks.