Where There’s a Will, There’s Family: Pre-mortem validation and no-contest clauses to the rescue!

In recent years, many states have enacted pre-mortem validation statutes enabling testators or settlors to take proactive steps to avoid will or trust contests. Pre-mortem validation statutes provide a mechanism to be used during the testator’s life to ensure testamentary documents are declared valid and to avoid post-death challenges. Another approach that offers a strong deterrent to will contests is the use of so-called “no-contest” provisions that have been validated by statute or case law.

Pre-mortem validation statutes come in two varieties: judicial validation or a non-judicial procedure. Arkansas, North Carolina, North Dakota and Ohio have judicial validation statutes that apply only to wills. Alaska, Nevada and New Hampshire have judicial validation statutes that apply to wills and trusts. Will statutes are useful for individuals who are domiciled in those states, but trust statutes can be used by settlors located anywhere who use that situs for their trusts. South Dakota and Delaware are the only states that have non-judicial pre-mortem validation statutes.

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Todd A. Flubacher and Amy K. Kanyuk, “Where There’s a Will, There’s Family: Pre-mortem validation and no-contest clauses to the rescue!” Trusts & Estates Magazine (March 2019)