Traditionally, inheritance disputes begin only after someone has passed away, when wills and trusts are submitted for probate and conflicts arise over their contents. But a growing trend is shifting that timeline. In a rising number of cases, beneficiaries, trustees, and conservators are pursuing legal action before a testator’s death. These pre-death or “pre-mortem” lawsuits aim to resolve issues such as mental capacity, undue influence, or ambiguities in legal documents while the individual is still alive.
Estate lawyers in Los Angeles and other legal hubs are increasingly involved in declaratory judgment actions and capacity challenges that seek clarity and prevent prolonged court battles later. This article examines how and why these proactive legal measures are gaining traction, the legal hurdles involved, and what it means for families navigating emotionally and financially complex situations.
Under long-standing legal doctrine, an estate plan remains silent until the testator’s death. Courts have generally refused to hear challenges to wills or trusts before death due to concerns about wasting judicial resources and violating privacy rights. For instance, the Iowa Supreme Court recently ruled that a sibling could not contest her brother’s capacity or estate documents while he was alive, a principle rooted in “wills shouldn’t speak before death.”
This rule persists in many states. Litigants typically lack standing until after the testator’s passing, even if they suspect issues of capacity or undue influence. The justification: courts want a clear controversy, not hypotheticals, especially when the testator could revoke or amend documents at any time.
Some forward-thinking states have introduced ante-mortem probate, permitting testators to validate wills or trusts while alive. As of now, Alaska, Arkansas, North Dakota, and Ohio have statutes enabling this procedure, offering a way to lock estates in place and avoid post-death disputes.
In a pre-mortem will contest, the process is typically initiated by the testator, or in some cases, by an interested party with the court’s permission. The goal is to obtain a judicial declaration affirming the validity of the will or trust document before death. To ensure fairness, all potential heirs are formally notified and given an opportunity to participate. The court then evaluates key factors such as the testator’s mental capacity and whether the document was executed free from undue influence. If the court determines the document is valid, it becomes significantly harder to challenge after the testator passes, offering a level of legal certainty that traditional probate lacks. Advocates for this approach argue that it promotes judicial efficiency, reduces costly litigation, and offers peace of mind - particularly for individuals with significant wealth or complex family dynamics, such as blended households.
The process can be costly, public, and emotionally taxing for families.
Testators may expose their intentions to potential heirs prematurely, causing family tensions.
Any subsequent amendments to the will would require repeat validation.
These concerns explain why most states continue to prohibit pre-mortem will challenges.
Even without formal ante-mortem statutes, courts can address concerns around capacity through substituted judgment proceedings. This often occurs in guardianship contexts:
In California, for example, conservators manage the estate, and courts can validate a will under substituted judgment, effectively shielding it from post-death challenges.
Some beneficiaries seek declaratory judgments—a court order that outlines rights and interpretations related to estate documents. Declaratory relief exists principally to resolve uncertainty early, but its use in pre-death estate matters is limited.
While a declaratory judgment can clarify contractual or property questions, courts have typically ruled they cannot be used to challenge wills or trusts before probate, seeing such cases as premature disputes without direct legal consequences.
In Arkansas, for instance, declaratory relief is permitted after probate for will-related questions, but not as a direct attack on validity.
Despite challenges, certain scenarios motivate families to act early:
Preserving Evidence: A live testator can be evaluated directly—no need to rely solely on witness testimony or medical records.
Avoiding Hefty Contests: Undue influence disputes can become costly and invasive if delayed. Pre-death adjudication offers clarity to deter post-death litigation.
Peace of Mind: Testators may want judicial confirmation that their wishes are sound and undeniable, preventing future family conflict.
Before pursuing pre-mortem litigation, families should weigh:
Jurisdiction: Is the testator in Alaska, Arkansas, North Dakota, or Ohio? If not, ante-mortem probate isn't permitted.
Privacy vs. Transparency: How much early disclosure will family members expect or demand?
Cost vs. Value: How much confidence and prevention is worth relative to legal fees?
The Potential for Change: Could the testator reasonably change their estate plan after validation?
Estate litigators emphasize that while pre-death litigation is rare, it can be invaluable in the right circumstances:
Attorneys note that testators with complex, high-value estates or estranged family structures may benefit most.
Judges in ante-mortem jurisdictions recognize it reduces "worst evidence" scenarios where patterns of undue influence or capacity issues need to be proven posthumously.
Pre-death estate litigation remains the exception, but it's gaining relevance in selected jurisdictions and family situations. Where permitted, ante-mortem probate can offer certainty, prevent future disputes, and give testators confidence in the validity of their intentions.
Yet this legal tool isn't one-size-fits-all. Families must carefully evaluate whether the clarity and prevention outweigh the financial cost, emotional exposure, and procedural complexity. For now, the conventional model - waiting until probate - still dominates, but with estate litigation evolving, more families and advisors are rethinking their approach to inheritance disputes and asking: Can you sue before someone dies? In limited cases, the answer is increasingly: yes.
