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 judgment.
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.
Until next week,