A way to reduce will contests?

by Walter Olson on March 16, 2014

Margaret Ryznar at PrawfsBlawg:

…in France, there are almost no will contests brought on the grounds of a lack of capacity, fraud, or undue influence. In the United States, on the other hand, 3% and 5% of all wills executed will be contested, most commonly, on undue influence grounds. Why the difference?

Two elements of French law — mandatory shares for children and the role of specialized officers known as notaires who assist in document preparation — would be hard to duplicate here. Another institutional step that might reduce the incidence of costly probate struggles, however, would be to adopt (as three states have) what is known as antemortem probate, a right of testators to go to court during their lifetime seeking to have their testaments validated against challenge. “The proceeding allows judicial evaluation of the testator’s capacity, intent, and freedom from undue influence or fraud during the testator’s lifetime, which has the obvious benefit of the presence of the testator at the proceedings.”

It seems, however, that the antemortem probate procedure is seldom used in the American states where it is available. (Nor are official registries of wills, another aspect of the French system Ryznar describes as “easily adoptable” here and indeed in effect in some states.) Is the process going unused mostly because of unfamiliarity, or because persons whose estates will end up being contested on grounds of undue influence do not commonly recognize that? Or are there other reasons the procedure might be unpopular, such as an unwillingness to offend family members who are getting less than they might like?


1 Rusty Bill 03.16.14 at 9:34 am

“Or are there other reasons the procedure might be unpopular…”

Or maybe those with sufficient assets

a) to require a will, particularly a complex one, and
b) can afford the time and expense to pre-probate

don’t want the government to know exactly what they have, lest they be taxed into the poorhouse.

2 Jack Olson 03.17.14 at 9:04 am

Rusty Bill, France has a wealth tax on assets like stocks and bonds while the United States’s wealth tax consists only of property tax on real estate or estate taxes. It’s hard to conceal a piece of real estate from the tax assessor although you can dispute the assessed valuation. So, if anybody would want to conceal taxable assets such as financial securities, it ought to be Frenchmen instead of Americans.

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