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Filing a Will Contest Before Death of the Signer

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Will contest before death

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.


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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.