Spencer Law Firm LLC
717.207.7935 866.639.5451

Pre-Death Will Validation Part I

Most of the 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," [Testing 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.

Stay tuned for more next week...
-Patti Spencer

No Comments

Leave a comment
Comment Information

We’d Like to Hear From You

Bold labels are required.

Contact Information

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.


Contact Information

Spencer Law Firm LLC
320 Race Ave
Lancaster, PA 17603

Toll Free: 866-639-5451
Phone: 717-207-7935
Lancaster Law Office Map

  • MS Logo The American College of Trust and Estate Counsel
  • Super LawyersAV Peer Review Rated
  • fig | figmagazine.com