Article on Alaska and Ante-Mortem Probate

Mere months before real estate magnate and Indiana Pacers co-owner Mel Simon died in September 2009, Simon endorsed momentous changes to his will–a will controlling an estate valued between $1 billion and $2 billion. Bren Simon, the Simon Property Group founder’s wife, had her inheritance augmented from one-third to one-half of the estate, while the children from Mel Simon’s prior marriage–Deborah Simon, David Simon, and Cynthia Simon-Skjodt–were removed from the will. The changes brought a previously simmering inheritance dispute to a boil, as Deborah Simon sued her stepmother, alleging that Bren Simon unduly influenced Mel Simon’s changes. 

In an attempt to dilute post-mortem challenges to a will’s validity, a testator’s intent, or a testator’s mental capacity, a state may consider passing ante-mortem probate legislation. While such legislation may take many forms, it generally “enables a testator, prior to his death, to adjudicate several legal and factual issues that might [otherwise] be raised in a post-mortem will contest.”

In light of Alaska’s June 2010 adoption of ante-mortem legislation, this Note rekindles the living probate debate and encourages states to adopt a “collage version” of contest model ante-mortem probate legislation. Part II begins with an explanation of post-mortem probate and ante-mortem probate before chronologically surveying significant attempts to pass living probate legislation. Part III analyzes each attempt to pass ante-mortem probate legislation by inspecting the form and language of each proposed legislation. Unlike any past published article or note, this Note considers a 2009 New York Bar committee debate of ante-mortem probate, as well as recent Alaskan legislation. Ultimately, Part IV recommends weaving specific portions of North Dakota’s, Arkansas’s, Ohio’s, and Alaska’s ante-mortem probate provisions together to reach a collage version of contest model ante-mortem probate.