Pre-Death Will & Trust Contests: Should They Be Allowed?

by David Faltz on February 20, 2014


(US law & generally) Can – and should – a will or trust be challenged before the settlor dies? Different states across the United States respond differently to this question. Conventionally, a will is not operative until death; therefore, it cannot be offered for probate while the testator is still alive. In the past, courts would automatically refuse to hear pre-death will contests, since such legal proceedings would involve the expenditure of resources on a claim that could be subjected to further amendments or even revocation, but as of recently, the trend is starting to change.

Over the past few years, a handful of states – Alaska, North Dakota, Ohio, and Arkansas – have enacted statutes specifically allowing pre-death will and trust contests. Other states that don’t expressly sustain the validation of the will while the settlor is still alive seem to display a subtle inclination towards recognizing certain pre-death claims regarding wills and trusts.

The theory is that the testator may live many years after he/she loses mental capacities. While beneficiaries wait for the testator to pass away, critical evidence might be lost, witnesses may die, or their memories may fade over time; tangible proof such as legal documents may be destroyed or completely lost. In the meantime, testators who are old and can no longer handle their financial affairs and health may become victims of the abuse of others. Pre-death will validation makes even more sense when it comes to matters concerning undue influence or lack of capacity.

In short, it’s always easy to solve issues concerning the validity of a legal document while the person who made the will or trust is still alive, since the settlor or testator can simply explain the provisions of the document and solve family disputes.

Probate Laws

Under Florida law, challenging the validity of a will or trust before the settlor or testator has passed is not allowed, except in special circumstances. Basically, a pre-death will contest doesn’t actually solve anything on a long-term basis – for example, what happens if the will is contested before the testator dies, but he/she then decides to modify the document? Then, the whole process will most likely have to be carried out again in order to avoid the possibility of a post-mortem will or trust contest. Furthermore, such legal proceedings challenging the validity of estate documents will automatically damage the settlor’s personal relationships.

Alternative Strategies to Pre-Death Will & Trust Contests

The first avenue of attacking the validity of a legal document would be to file a petition to recover assets from the trustee of invalid trust document. The law states that:

“A claimant could file a petition under Probate Code § 850 for a constructive trust over assets in the hands of trustees of a trust that is invalid because it was obtained by undue influence or fraud. A petition under Probate Code § 850 is a powerful, strategic tool in conservatorship litigation to recover assets or resolve adverse claims to real or personal property by filing a petition under Probate Code § 850. The petition would seek to bring assets into the conservatorship estate. “


Secondly, a civil complaint for undue influence or fraud can be filed as an effective strategy for contesting a will. A will or trust litigator can consider a civil action as a suitable alternative, though courts have yet to address “whether a civil case based upon the procurement of a trust by fraud or undue influence would be limited to circumstances where the trust is irrevocable in the sense that no competent person holds the power of revocation.”

Lack of capacity, undue influence, and fraud are the legal grounds for contesting a will and may be the basis of a civil complaint. Although a civil complaint is usually filed by the person defrauded, in a contest, the claim is not typically made by the one defrauded. Rather, the person contesting the will claims the settlor is the one defrauded to the injury of the contestant.

While they may sound good in theory, pre-death will contests may still have to go a long way until they can serve a meaningful purpose, especially since it hasn’t become the norm across states in the U.S., and differences in state laws may not allow individuals to carry out the procedure and take advantage of it in case of changing residence. Until further changes, individuals who want to challenge the provisions of a will or trust can do so through conventional ways, with the help of an experienced trust litigation lawyer to guide them through the complicated Florida trust law.

About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.

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