“Pre-mortem probate” — surely that's an oxymoron? A will becomes effective only upon the death of its maker. To probate a person's last will and testament, meaning to prove the will's validity, months or even years before the person dies seems problematic, to say the least. What if the testator makes another will later? If the court finds a will invalid pre-mortem, are later codicils invalid as well?

In reality, “pre-mortem probate” is a misnomer. Actual probate does not take place. Instead, the proceeding results in a judicial finding about the validity of a particular will before the testator dies. Such a judgment does not vest the interests of a legatee under this “pre-probated” will. It also does not preclude the testator from revoking the “pre-probated” will or making another, superseding will later.

Pre-mortem probate is not a new concept and it's never been widely implemented. Michigan had a pre-mortem probate statute in the 19th century1 that the state Supreme Court declared invalid in 1885.2 In the 122 years since, few other jurisdictions have ventured into pre-mortem probate territory. Today, only three states (Arkansas, North Dakota and Ohio) have pre-mortem probate statutes. Courts in five other states rejected pre-mortem probate, and they've done so soundly and convincingly.

Yet the issue is on the front burner in New York these days. Recent intermediate appellate panel decisions (in one of the state's four geographical divisions) found that the courts have the right to invalidate wills during the makers' lives. On a practical level, these decisions are creating what lawyers hate most: uncertainty. They're also generating heated debate within the bar about proper public policy.

Advocates of pre-mortem probate say it can be an effective tool to discourage, even prevent, elder abuse. Manipulation of the impaired elderly appears to be increasing rapidly, which is not surprising given the rate at which the number of seniors is expanding. Too often, such manipulation results in a senior signing a new will that favors the manipulator.

While protecting the elderly is noble, we think that using pre-mortem probate to do so is misguided and ultimately ineffective. Not only does pre-mortem probate trample due process, but it also may victimize the elderly by forcing them to deplete their assets to fund unnecessary litigation.


Not one of the three state statutes permitting pre-mortem probate is aimed at stopping the victimization of the incapacitated. All three provide that only the maker of the will himself may initiate a proceeding to determine the validity of his will.3

An Ohio appellate court cogently articulated the justifications for pre-mortem probate in the case of Horst v. First National Bank:4 “Legislative authorization of ante-mortem probate proceedings has several commendable facets. A testator, who may testify, has the opportunity to personally defend challenges to his testamentary discretion. Obviously that opportunity is lost in death. The proceedings also enhance the quality of relevant corroborating evidence inasmuch as it is necessarily comparatively fresh. Issues of undue influence and captation are early resolved, particularly when the testator is available for testimony.

“Since relevant corroborating evidence in testamentary competency litigation concerns only that period of time immediately surrounding a will's execution, the acceleration of its contestation to a point prior to the testator's death can only serve to upgrade its quality and ease its acquisition.”

The court also noted that “it is contemplated that such procedure eliminates spurious challenges by … requir[ing] all challengers to personally confront the testator with their allegations concerning his mental capacity. Even if this distasteful requirement is met, the spurious challenger must remain to confront a potentially overwhelming burden of proof.”5 Moreover, the court added, pre-mortem probate can insulate the probate attorney from malpractice and provide early identification of drafting problems (such as the rule against perpetuities.)6

Despite this reasoning, courts in five other states have rejected pre-mortem probate; Michigan did so in 1885; Washington in 1916; Texas in 1952; Tennessee in 2001; and Missouri in 2004.

In Lloyd v. Wayne Circuit Judge,7 the Michigan Supreme Court voided the state's statute that had allowed a testator to submit his own will for probate during his lifetime. The court found the statute unconstitutional for failing to provide a testator's spouse with notice and opportunity to be heard. But the decision also implied that the court's jurisdiction does not support the notion of pre-death probate because any adjudication about a will's validity “will at all times be subject to [the testator's] own discretion or caprice” to change or revoke the will.8

A concurring opinion unequivocally rejected the whole concept of pre-mortem probate: “The maxim that the living can have no heirs is as well settled by statute as by common law. Until a man dies it can never be known who will succeed him, even if intestate, and whatever may be the probability there is no certainty that a single one of the persons who have come in here to oppose the will may survive the testator.”9 Moreover, said the concurring justice, “[t]he broadest definition ever given to the judicial power [under the Michigan statute] confines it to controversies between conflicting parties in interest, and such can never be the condition of a living man and his possible heirs.”10

The Supreme Court of Washington also definitively rejected pre-mortem probate. In the 1916 case of Pond v. Faust,11 that court was faced with an action by an incapacitated testatrix's guardian to annul and cancel the testatrix's will on several grounds, including that she lacked capacity when the will was executed. The Pond court dismissed the guardian's proceeding and, citing Lloyd, reiterated the principle that “until a man dies he has no heirs.”12 The court found that it had no power to rule on the legitimacy of a will before the testator's death and stated: “Wills being creatures of the statute, these various statutes are most assuredly fully comprehensive and exclusive, and aside from their directions no court has any jurisdiction of any kind over wills.”13

Lloyd and Pond rest on the principle that to adjudicate the validity of a will before the testator's death would be to issue a declaratory judgment, which, at those times, was prohibited. But these cases' value as precedents arguably lost their punch in 1937 when the U.S. Supreme Court approved the Declaratory Judgment Act in Aetna Life Ins. Co. v. Haworth.14 In that case, the high court set out the requirements for a controversy appropriate for a declaratory judgment: “The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests … It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”15 But did Aetna give the green light to pre-mortem probate declaratory judgments? In 1952, the Court of Civil Appeals of Texas effectively said, “No.”

In the case before the Texas court, Cowan v. Cowan,16 two adult children of an incapacitated testatrix sought to have their mother's purported will, disinheriting them and leaving her residuary estate to testatrix's third child, declared invalid under a portion of the Texas Uniform Declaratory Judgments Act, which provided that “any person interested under a deed, will, or written contract may have determined any question of validity arising under the instrument.”17

Despite this seemingly specific authorization, the court declined to adjudicate the validity of the living testatrix's will, stating, “Prior to the enactment of the Uniform Declaratory Judgments Act no court in Texas had the power to determine the validity of the will of a person still alive; nor, in our opinion, does any court in this State now have that jurisdiction.”18 The Cowan court emphasized that the Declaration Judgment Act “does not … create any new substantive rights, nor was it so intended.”19 Furthermore, citing 16 American Jurisprudence 293, the court stated, “The Act does not contemplate declarations upon matters where the interest of the plaintiff is contingent upon the occurrence of some future event.”20 And lest any doubt remain, the Cowan court echoed Lloyd and Pond by concluding that, “since Mrs. Cowan is not dead, there are no heirs and there is no will.”21

Not another judicial word was recorded on the subject for almost 50 years. Then, in 2001, the Court of Appeals of Tennessee in Wynns v. Cummings22 reached a similar conclusion. No jurisdiction exists to declare the validity or invalidity of a will before the testator's death, the court said.

And as recently as 2004, a Missouri court in Estate of Rogers v. Battista found that no court has jurisdiction to determine the validity of a will in a proceeding other than a post-mortem will contest.23

As a matter of legal analysis as well as practicality, the reasoning of the courts in the Lloyd, Pond, Cowan, Wynns and Rogers is sound. While the limited pre-mortem probate permitted by the Ohio statute may be commendable in an abstract sense, its possible virtues fail to take account of the basic principle of law Lloyd, Pond, Cowan, Wynns and Rogers articulated: namely, due process. So compelling are these five decisions that the subject of pre-mortem probate would seem to be dead letter.


Yet it's far from dead letter in New York. These days, pre-mortem probate is hot in one part of the Empire State. In fact, the New York courts that have decided a will's validity pre-mortem have gone beyond the three states with actual pre-mortem probate laws on the books in that the New York courts are allowing someone other than the will's maker to obtain the decision.

Those New York courts base their authority in Article 81 of the state's Mental Hygiene Law (MHL). The focus has been on the alleged incapacity of an individual, typically an infirm elder person. Article 8124 authorizes courts to determine whether an alleged incapacitated person (AIP) is, in fact, incapacitated. Upon a finding of incapacity, Article 81 gives the court a broad array of measures for providing the incapacitated with support tailored to his needs, including the appointment of a guardian for the person's property. The core public policy of Article 81 is that there be minimum intervention. With respect to wills, MHL Section 81.29(b) provides that “the appointment of a guardian shall not be conclusive evidence that the person lacks capacity for any other purpose, including the capacity to dispose of property by will.” (Emphasis added.)

If the court finds that an AIP is incapacitated, MHL Section 81.29(d) empowers the court to rectify abuses that occurred previously, including the recovery of the incapacitated's property and the vitiation of his contracts. The language of this paragraph, particularly in the context of the overall statute and the public policy purpose, seems clear cut. This paragraph states: “If the Court determines that the person is incapacitated and appoints a guardian, the Court may modify, amend, or revoke any previously executed appointment, power, … contract, conveyance, or disposition during lifetime or to take effect upon death, made by the incapacitated person prior to the appointment of the guardian if the Court finds that the previously executed appointment, power, … or disposition during lifetime or to take effect upon death, was made while the person was incapacitated.” (Emphasis added.)

Yet no will conveys or disposes of the maker's property. Hence, it is surprising that a New York intermediate appellate court in the 2006 case of Matter of Rita R.25 held that MHL Section 81.29(d) authorized it to revoke pre-mortem the will of an incapacitated person.26 Indeed, the same appellate court had held in 2003 that a trial court in an MHL Section 81 proceeding “did not have the authority to revoke the last will and testament of Lillian A.”27

The Rita R. court purported to distinguish its decision from its earlier decision in Lillian A. on the ground that “there was no finding of lack of capacity” in Lillian A.28 But it is a rather puzzling distinction in that the Lillian A. decision is decided upon the issue of subject matter jurisdiction.

We believe that the New York court was correct in its 2003 Lillian A. decision and wrong in its 2006 Rita R. decision; the courts do in fact lack subject matter jurisdiction. On its face, MHL Section 81.(d) empowers the court to invalidate a “conveyance, or disposition” that takes effect during the life of, or upon the death of, an incapacitated person. For example, a deed conveying a remainder in Blackacre is a disposition taking effect upon the death of the grantor. The remainder in Blackacre is property that has value. If a court invalidates the deed on the grounds that the maker was incapacitated at the time he signed the deed, the recovery of the conveyed remainder restores that value to the incapacitated grantor. In contrast, a will conveys or disposes of nothing.

Invalidating a will restores nothing, because nothing has been bequeathed or could have passed to legatees until the will has been probated following death. Rather, a will contest awaits the miscreant who procures a will benefiting himself from one lacking testamentary capacity.

The present state of the law of pre-mortem probate in New York, unsettled and uncertain, reflects the noble disposition of the New York courts to aid the elderly and infirm. Certainly, the courts have seen horrendous cases of elder abuse. In Matter of Ruby Slater,29 an MHL Section 81 proceeding commenced in 2001 by the City of New York, two of her former health care aides sought their appointment as her guardians. The trial revealed that these aides had egregiously overreached the severely imposed upon Slater, obtaining her powers of attorney, conspiring to obtain her assets and vigorously opposing the city's commissioner of Social Services. The aides did this with the help of an attorney whom they'd selected and whose behavior a trial court found was “not only the epitome of improper conduct but border[ed] on [the] criminal.”

The court appointed an independent guardian for Slater and revoked all fiduciary-related documents. But it didn't stop there. The court also said that, “given the extraordinary onerous actions of [the aides] and their attorney, the Court, sua sponte takes the extraordinary step of vitiating the Will executed on November 17, 2000. In doing so this Court is conscious that such [action] is usually reserved to the Surrogate and the Court has the authority to exercise its general jurisdiction and make this determination in light of the facts before it at this time.” (Emphasis added.)

Notably, in vitiating the will of Ruby Slater, the trial court did not cite MHL Section 81.29(d) as its authority.

The appeal by the aides' attorney was dismissed on the ground that she lacked standing, without addressing whether the trial court had the authority to revoke the will of an incapacitated maker pre-mortem.30

Many trusts-and-estates lawyers regarded Slater as an aberration, a case of the end justifying the means without regard to the profound questions of law engaged by the court's revoking the will of a living person. That view seemed to be justified by the next decision in Matter of Lillian A.,31 which held, “The Supreme Court did not have the authority to revoke the last will and testament of Lillian A.” in an MHL Section 81 proceeding.

Yet, the next case in this series was silent on the question of whether MHL Section 81 permits pre-mortem probate. In Matter of Joseph S.,32 a trial court appointed a property guardian for Joseph S. and annulled the marriage between Joseph S. and his former nurse, 43 years his junior. The court found that Joseph S. lacked the capacity to execute any wills after Feb. 1, 2001, and determined that any legal documents executed by him after that date were null and void.

The Appellate Division, Second Department, reversed the trial court's holding that the wills executed by Joseph S. after Feb. 1, 2001, were null and void. But, again, the court took this action without addressing whether the trial court had the authority to declare the wills of an incapacitated person invalid. The reversal rested on due process grounds, specifically that the invalidity of the wills of Joseph S. had not been pleaded and, thus, the appellants were not given adequate notice or an opportunity to be heard with regard to such relief.

Just 28 days after its Joseph S. decision, the same Second Department court held in the most recently reported appellate decision that a trial judge may vitiate a will in a MHL Section 81 proceeding.33


The confusion in New York suggests that it may be time to examine, thoroughly, the potential efficacy of pre-mortem adjudications of the wills of persons found to have been incapacitated at the time the wills were made. The first question to address in such a study: would incapacitated individuals truly benefit if courts could determine the validity of their wills before they died? If the answer is “yes,” can the profound legal impediments found by the courts of Michigan, Washington, Texas, Tennessee and Missouri (including a lack of due process for those who have standing to litigate in a post-mortem will contest) be overcome? Or even mitigated? Also to be considered: can pre-mortem invalidity be adjudicated on the grounds of undue influence, fraud and the lack of due execution, as well as lack of testamentary capacity? What can be done in pre-mortem probate to preserve will contestants' rights, such as burdens of proof, pre-trial discovery and the right to a jury trial?

But most importantly, on the public policy level, we must ask whether pre-mortem contests intending to help the elderly would wind up victimizing them, by depleting their financial resources, even their life's savings, in a battle over what is to happen with their assets after they die. Wouldn't it be better to use those resources to provide them with the best care and comfort that their means allow?

Our answer to these questions is simple: The will contest system is not broken and does not need to be fixed. We see little, if any, benefit to pre-mortem adjudications of a will's validity, even if it was made by an allegedly incapacitated person. Moreover, we believe the attendant expense far outweighs any possible benefit.
The authors thank Faith Carter, an associate at Holland & Knight, for her substantial contribution to this article.


  1. 1883 Michigan Public Statutes 17.

  2. Lloyd v. Wayne Circuit Judge, 56 Mich. 236, 23 N.W. 28 (1885).

  3. Arkansas Code Annotated Section 28-40-201 et seq. (West 1979); North Dakota Century Code Section 30.1-08.101 et seq. (1977); Ohio Revised Code Annotated Section 2107.081 et seq. (West 1978).

  4. Horst v. First National Bank, 1990 WL 94654 (Ohio App. 5 Dist.), citing Timothy R. Donovan, “The Ante-mortem Alternative to Probate Legislation in Ohio,” Capital U. L. Rev. 1980, 1981-1982, at p. 717.

  5. Ibid., quoting Donovan, at p. 721.

  6. Daniel A. Friedlander, “Contemporary Ante-mortem Statutory Formulations: Observations and Alternatives,” Case W. Res. L. Rev., 1981-1982, at p. 825; ibid.

  7. Lloyd v. Wayne Circuit Judge, 56 Mich. 236, 23 N.W. 28 (1885).

  8. Ibid., at p. 239.

  9. Ibid., at pp. 240-241.

  10. Ibid., at p. 243.

  11. Pond v. Faust, 90 Wash. 117, 155 P. 776 (1916).

  12. Ibid., at p. 120.

  13. Ibid., at p. 121.

  14. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937)

  15. Ibid., at pp. 240-241.

  16. Cowan v. Cowan, 254 S.W.2d 862 (Tex. Civ. App. 1952).

  17. Ibid., at p. 862.

  18. Ibid., at p. 863.

  19. Ibid., at p. 864.

  20. Ibid., at p. 865.

  21. Ibid.

  22. Wynns v. Cummings, 2001 WL 1683757 (Tenn. Ct. App. 2001). The plaintiff, a son of testatrix Leola Wynns, who held a power of attorney from his mother, sued Leola's granddaughter to have all of his mother's assets in defendant's possession turned over to him. The defendant granddaughter thereafter petitioned for appointment of a conservator and for an order enjoining plaintiff from removing Leola's assets. The trial court held that the appointment of a conservator was warranted, and that the power of attorney held by plaintiff and a will executed by Leola both were void.

    On appeal, the appellate court held, in part, that the trial court had no jurisdiction to declare Leola's will void prior to her death and vacated that part of the lower court's findings. The court observed: “In the instant case, there was no justiciable issue concerning the 1998 will or any other will of Leola because she was not deceased. In effect, consideration of the 1998 will was a declaratory judgment, which is not proper in the absence of a justiciable controversy.” Ibid., at *7. The court also noted, in discussing the lower court's findings as to the testatrix's mental capacity, the validity of her appointment of her son as attorney-in-fact, and the appointment of a conservator, “The evidence establishes that at the very least Leola had lucid intervals and there simply is not proof that on the specific dates involved Leola was not mentally competent.” Ibid., at *6.

  23. In Estate of Rogers v. Battista, 125 S.W.3d 334 (Mo. Ct. App. 2004), a decedent's stepdaughter, who had been appointed limited conservator of her stepfather's estate after he suffered a stroke, petitioned to be discharged after his death. The decedent's daughters filed objections. A trial court held the stepdaughter liable for certain transfers made during her conservatorship and declared in this post death accounting action that a will and trust executed by decedent before his death were invalid because the conservators had not obtained the court's approval to pay for the will and trust. On appeal, the Missouri Court of Appeals found that the trial court lacked jurisdiction to declare the invalidity of the will and trust, explaining: “Whether the payment was authorized has nothing to do with whether the will and trust were valid instruments. This is a matter that can only be determined in a will contest … The instant action was not a will contest and the trial judge had no jurisdiction to hold the will and trust to be invalid and void.” Ibid., at p. 342.

    Although the testator in Rogers already was deceased when the lower court made the determination in question, the principle behind the Court of Appeals' decision is essentially the same as that in Lloyd, Pond, Cowan, and Wynns: The validity of a will cannot be determined until the testator has died and probate of the will has been contested by an interested party in a statutorily authorized will contest.

  24. New York Mental Hygiene Law Section 81.01 et seq. (McKinney 1996).

  25. The intermediate appellate court, known as the appellate division, is divided into four geographic departments, each department having autonomy.

  26. Matter of Rita R., 26 A.D.3d 502, 811 N.Y.S.2d 89 (N.Y. App. Div. 2d Dep't 2006).

  27. Matter of Lillian A., 307 A.D.2d 921, 762 N.Y.S.2d 899 (N.Y. App. Div. 2d Dep't 2003).

  28. Supra note 26, at p. 503.

  29. Matter of Ruby Slater (N.Y. Sup. Ct. 2002), New York Law Journal (Feb. 11, 2002), at p. 28.

  30. Matter of Slater, 305 A.D.2d 690, 759 N.Y.S.2d 885 (N.Y. App. Div. 2d Dep't 2003).

  31. Supra note 27.

  32. Matter of Joseph S., 25 A.D.3d 804, 808 N.Y.S.2d 426 (N.Y. App. Div. 2d Dep't 2006).

  33. Supra note 26.