There’s one persistent problem with will contests. Academics often refer to the “worst evidence” rule. The person who signed the will can not testify about what they wanted. Wouldn’t it be great if you could take care of a will contest, before death of the signer removes the best evidence?
First, though, let us make an important observation. Will contests are not common. In fact, probate of wills is uncommon. The frequency of probate proceedings is also on the decline. Beneficiary designations, living trusts and other probate avoidance techniques continue to increase in frequency.
“Pre-mortem” will contests
The idea of filing a will contest before death of the signer has been around for centuries. Probate courts resist the idea, though. Why? Because the litigation could be a waste of effort. Once you establish that a will was valid, nothing stops the signer from changing their will.
Court proceedings to determine validity of a will, but filed before the death of the signer, are sometimes referred to as “pre-mortem” or “ante-mortem” (“before death”) contests. One leading academician (and a good friend of Fleming & Curti, PLC), Prof. Gerry Beyer, wrote about the idea a decade ago. He noted that three states had by then adopted laws to permit a will contest before death, and he encouraged other states to follow suit. Few have. Arizona has not.
Neither, as it turns out, has Georgia. That was key to the resolution of a recent Georgia Court of Appeals decision. The case lays out some of the reasons that pre-mortem will contests make sense, as well as some of the limitations.
Background of the Georgia case
Sally Sampson (not her real name) had prepared a will in March, 2012. She left her estate to a long-time friend, her attorney, and a charity. Her will and powers of attorney were prepared by a lawyer unrelated to her original attorney, to help assure that there would be no conflicts of interest.
By December of that same year, Ms. Sampson’s lawyer and friend had decided to file a guardianship and conservatorship petition. The Georgia probate court ultimately appointed Ms. Sampson’s friend as her guardian. Rather than appoint the lawyer as conservator of her estate, however, the judge appointed a family member.
Shortly after those proceedings, Ms. Sampson signed a new will. She revoked the 2012 will and left everything to the family member who now served as conservator of her estate. In her new will, she expressly excluded her former lawyer and the friend who was still her court-appointed guardian.
The guardian filed a lawsuit against Ms. Sampson’s conservator, asking for a judicial declaration that the new (2013) will was invalid. She accused the conservator (who, remember, was the beneficiary of the new will) of having destroyed the 2012 will. Her lawyer: the same one named as a beneficiary under the 2012 will (who had also petitioned for appointment as conservator of the estate).
The Georgia court threw the lawsuit out. There was no mechanism, ruled the judge, for someone to challenge the validity of the new will before Ms. Sampson’s death. Even the validity of the alleged destruction of the earlier will would have to wait until after her death.
The Georgia Court of Appeals agrees
Last week Georgia’s intermediate appellate court affirmed the dismissal of the lawsuit. The Court of Appeals decision describes the idea of ante-mortem will challenges, and notes that Alaska, Arkansas, Delaware, New Hampshire, North Carolina and North Dakota (they left out Ohio) have all adopted laws permitting such proceedings. Georgia, however, has not. The lawsuit sought a declaration that the destruction of the 2012 will and signing of a new will were invalid; that was simply an ante-mortem will challenge in disguise.
The appellate court noted that Ms. Sampson might still revoke the 2013 will, or revive the 2012 one. She might sign a completely new will. Consequently, a court order would be “an improper advisory opinion,” not based on a real case or controversy. Kellar v. Davis, June 11, 2019.
Can you file a will contest before death in Arizona?
That doesn’t mean there’s nothing to be done. At or about the same time as signing a new will, trust and/or powers of attorney, it might make sense to get outside confirmation of the signer’s wishes and intentions. Good documentation of the circumstances, and involving disinterested professionals (like an independent lawyer) can also help.
Will contests are very rare, indeed. A will contest before death of the signer is beyond rare — it is impermissible in Arizona.