Mom Liked Me Better, and She Will Prove It: Pre-Mortem Validation—Permanent Solution or Fad?

Although much has changed, given the pandemic, recently election, and other things, will and trust contests are still a common occurrence. These contests often are brought by a child who feels they were treated differently than their siblings or other beneficiaries. A child may bring suit even if they were estranged from their deceased parent, even if it were for years before their parent’s death. 

A child may contest the will based on allegations of lack of capacity and undue influence, which typically has the effect of tying the estate up for years and the build up of attorney fees and court costs—not to mention the detriment to family relationships. 

The sad truth is that the most important person in the matter, the decedent, will not be their to testify to their intent and wishes. In turn, the court will have to rely on testimony from witnesses and experts who very well may not know what was going on in the decedent’s head when executing the will. Further, even if some of them do know, they may not tell the truth or be believed. 

One possible solution to avoid all of the litigation is Pre-Mortem Validation. Pre-Mortem Validation allows the maker of the estate planning document to to validate said document during their lifetime. So far, nine states have enacted legislation to allow Pre-Mortem Validation procedures, so that the voice of the most important person is heard. The list of states are provided below: 

• Alaska, Arkansas, Delaware, North Carolina, New Hampshire, North Dakota, Nevada, Ohio, and South Dakota. 

Although the states may differ in their standards and the requirements for Pre-Mortem Validation, they all have implemented the statutory procedure for a similar purpose. 

See Michael Sneeringer et al., Mom Liked Me Better, and She Will Prove It: Pre-Mortem Validation—Permanent Solution or Fad? , American Bar Association: Probate & Property, March/April 2021.