The Viability of Pre-Mortem Probate in New York?
7.29.2025
Pre-mortem probate is the statutory process of validating a will while the testator is alive. One significant advantage to pre-mortem probate is the certainty it provides regarding the testator’s intent. Who better to tell us what he or she wanted than the testator? In other words, the Spice Girls were onto something, as pre-mortem probate allows the testator to tell the court and one’s heirs what he or she really, really wants to happen with a testamentary estate.
New York does not have a statute allowing for pre-mortem validation of a will. Several other states, however, have adopted pre-mortem probate. North Dakota, enacted statutory pre-mortem probate in 1977.[1] Ohio followed in 1978, and Arkansas followed in 1979.[2] Alaska, New Hampshire, Delaware and North Carolina have also enacted statutes providing for the validation of wills through pre-mortem probate, and Nevada and South Dakota allow for pre-mortem probate through their declaratory judgment statutes.[3] Prior to July 2008, there were conflicting cases of quasi-pre-mortem probate in the New York guardianship courts. The viability of pre-mortem probate in New York as applied in these quasi-pre-mortem guardianship cases seemingly had been put to rest legislatively in July of 2008[4] with the amendment of Mental Hygiene Law Section 81.29(d). However, Matter of Steven S.,[5] a guardianship case, has once again raised concerns among Surrogate’s Court practitioners about the resurrection of these types of quasi-pre-mortem probate contests in the context of guardianship cases.
Pre-Mortem Probate: Judicial and Non-Judicial
Pre-mortem probate basically involves validating a testators wills in judicial proceedings while they are alive. The process of pre-mortem probate varies among states. For example, Ohio sets forth a process whereby the testator files an original will with the court, together with a complaint, and asks the court for a declaratory judgment that the will is valid, the testator had testamentary capacity and the will was not the product of undue influence.[6] Once the complaint is filed, notice issues to all beneficiaries named in the will, all potential heirs and any other necessary parties.[7] After notice has been provided, the court holds an evidentiary hearing at which the testator has the burden of proof establishing that the will was properly executed.[8] Any person challenging the complaint for declaratory judgment must establish grounds, such as lack of capacity, undue influence or fraud, for why validation of the will should be denied.[9]
Arkansas’s pre-mortem probate statute provides that any person who executes a will disposing of all or part of an estate located in Arkansas may institute an action for declaratory judgment establishing the validity of the will, and all beneficiaries named in the will and intestate heirs shall be made parties to the action.[10] If the court finds that the will was properly executed, the testator had testamentary capacity and the will was the product of the testator free from undue influence at the time of the will’s execution, the court shall declare the will valid, and order it placed on file with the court.[11] A finding of validity constitutes an adjudication of probate.[12]
Alaska’s pre-mortem probate statute allows the proceeding to be brought by the testator, the person nominated as personal representative or any interested party who has the testator’s consent.[13] Nevada similarly allows the proceeding to be brought by the testator or the legal representative of a testator.[14]
The pre-mortem probate procedure in Delaware is an example of non-judicial pre-mortem validation.[15] Under Delaware’s statute, the testator provides written notice of a will to any individual named as a beneficiary, any person who would take under the laws of intestacy and any other person whom the testator wishes to bind as to the will’s validity.[16] A copy of the will must be attached to the written notice.[17] In addition, the notice must advise the recipient that anyone wishing to contest the validity of the will must do so within 120 days of receiving notice.[18] The Delaware statute provides that anyone who has received notice and fails to timely bring an action is thereafter precluded from contesting the will.[19]
Pros and Cons of Pre-Mortem Probate
Proponents of pre-mortem probate argue that there are many advantages to this proceeding. Importantly, as noted above, estators can meaningfully participate in the process and make their wishes known even through their own testimony.[20] There is no more guessing as to what the testator intended. In addition, testators who utilize the process have peace of mind that their dispositive testamentary scheme will be effectuated.[21] Disgruntled family members might have no problem contesting a will after a testator’s death but might be discouraged from taking an aggressive position of opposing the validation of the will while the testator is alive.[22] Lastly, one of the alternatives to pre-mortem probate, the use of an in terrorem clause, requires the testator to leave the suspected challenger a bequest, in order to discourage a contest. The pre-mortem probate process obviates the need for the testator to leave a bequest solely for the purpose of disincentivizing a potential contestant.
Opponents of pre-mortem probate point to several disadvantages. Primarily, those opposing pre-mortem probate argue that a will is ambulatory and may be modified or revoked prior to death, and in such a case, it will render pre-mortem probate of a later revoked will meaningless and costly for no purpose.[23] In addition, pre-mortem probate might not provide finality if there are distributees born after notice has been given in a will validation proceeding.[24] A validation proceeding also may not be honored if the testator moves to another state.[25] Finally, pre-mortem probate raises privacy concerns, as a testator’s will may become public prior to death depending on the particular state statute.[26]
Quasi-‘Pre-Mortem Probate’ in Guardianship Proceedings
Prior to July 7, 2008, the issue of quasi-pre-mortem probate in the guardianship courts was the subject of much debate.[27] A fundamental concern was whether the guardianship courts had the authority to invalidate a will. There were several conflicting decisions regarding the guardianship court’s authority. Mental Hygiene Law Section 81.29(d),[28] prior to July 7, 2008, provided as follows:
“If the court determines that a person is incapacitated and appoints a guardian, the court may modify, amend or revoke any previously executed appointment, power . . . or any 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, delegation, contract, conveyance or disposition during lifetime to take effect upon death, was made while the person was incapacitated. . .”
Notably, Mental Hygiene Law Section 81.29(d) did not specifically include the authority of the court to revoke an incapacitated person’s will. Nevertheless, in Matter of Ruby Slater,[29] the Queens County Supreme Court “vitiated” the incapacitated person’s will. The Supreme Court there stated that the egregious facts of the case warranted the court taking such an “extraordinary step.”[30] Although the attorney-draftsman appealed the lower court’s decision, the appeal was dismissed for lack of standing.[31]
In Matter of Lillian A.,[32] the Kings County Supreme Court sua sponte revoked the alleged incapacitated person’s will; however, the Second Department reversed, holding that the lower court had no authority to revoke the will.[33] Importantly, there was no finding of incapacity made by the lower court.
In Matter of Joseph S.,[34] the trial court invalidated the incapacitated person’s will; however, the Second Department reversed on the grounds that no notice of the relief had been pled in the petition, and, therefore, the interested parties were not given adequate notice to be heard regarding such relief.
Unlike the guardianship trial courts, which took a proactive position in invalidating the incapacitated person’s wills, in Matter of Rita R.,[35] Surrogate Riordan, in the context of an Article 81 proceeding, relying on the plain language of the law, declined to invalidate Rita R.’s will even though he revoked her other estate planning documents.[36] The Second Department, however, reversed, finding that the Surrogate’s Court “clearly had the authority to revoke such an instrument pursuant to mental hygiene law.”[37]
In July 2008, in the face of these conflicting decisions, the New York Legislature amended the mental hygiene law by adding the following: “The court shall not, however, invalidate or revoke a Will or codicil of an incapacitated person during the lifetime of such person.”[38] It was believed that the amendment would put to rest the issue of pre-mortem probate in guardianship proceedings. However, the Supreme Court decision in Matter of Steven S.[39] has once again raised the issue of whether we are moving back to quasi-pre-mortem probate in guardianship proceedings. Although the Supreme Court in Matter of Steven S. recognized it did not have the authority to invalidate the will, the latitude in discovery granted in that case is troublesome to Surrogate’s Court practitioners as it encourages these quasi-pre-mortem will contests prior to the testator’s death for strategic purposes, without the procedures and protections afforded under the Surrogate’s Court Procedure Act and the Estates, Powers & Trusts Law.
In Matter of Steven S., the court required the production of an alleged incapacitated person’s will in an Article 81 guardianship proceeding on the grounds that the will and the circumstances surrounding its execution, was “probative and relevant” evidence to the decision the guardianship court had to make regarding whether the alleged incapacitated person had capacity when he executed a health care proxy, a power of attorney and business transfer documents.[40] The decision acknowledged that the Supreme Court could not invalidate a person’s will during lifetime but permitted discovery on issues directly related to the validity of the will, outside the confines of the Surrogate’s Court.
In Matter of Steven S., the guardianship court reasoned as follows:
“Although this Court does not have the authority to invalidate the Will allegedly executed by Steven S., the circumstances surrounding the purported execution of the 2020 Will is probative and relevant to the decision this Court must ultimately make regarding the other documents purportedly executed in 2020 . . . . The content of this 2020 Will, even unsigned, is probative and relevant evidence that can be used by the parties to possibly show evidence of alleged undue influence when compared to previous testamentary documents . . . . The parties are permitted to question cross-petitioner . . . and any other witnesses about the circumstances surrounding the purported execution of the Will . . . .”[41]
Matter of Steven S. raises many questions and concerns for Surrogate’s Court practitioners regarding fundamental procedures of will contests. Seemingly, the guardianship court, by allowing the examination of witnesses to Steven S.’ will as part of discovery, is essentially authorizing Surrogate Court Procedure Act 1404 examinations to be conducted prior to the testator’s death. This raises several procedural and evidentiary queries. Is the 3-2-year rule pertinent to examinations under Section 207.27 of the Uniform Rules for the Surrogate’s Court applicable in the guardianship context? The 3-2-year rule limits the scope of discovery to a designated time frame in probate proceedings. Is the 3-2-year rule rendered meaningless in such a quasi-pre-mortem probate guardianship? If the will contains an in terrorem clause, does the taking of discovery in the guardianship proceeding trigger the in terrorem clause? What about the safe harbor provisions of Estates, Power & Trusts Law 3-3.5 that protect a party from triggering an in terrorem clause in the case of the Surrogate Court Procedure Act examinations? What about the different levels of capacity required to make a will versus a finding of incapacity in an Article 81 proceeding? How do these quasi-pre-mortem guardianship cases square with these different standards of capacity and the mental hygiene law, which 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”? What about issues of Civil Practice Law & Rules 4519, known as “the deadman’s statute,” which plays an important evidentiary role in a traditional Surrogate’s Court will contest? Can persons who have been declared incapacitated in guardianship proceedings be required to testify with respect to the validity of their will because they do not have a “mental illness” as required by the civil practice law? What about notice? Will beneficiaries named in prior wills whose interests are adversely affected by the later will be afforded notice and an opportunity to participate in the guardianship proceeding?
In addition to these questions and concerns, quasi-pre-mortem probate in the guardianship context does not meet the objectives that pre-mortem validation was designed to promote. For example, the most significant benefit of pre-mortem probate is that the testator takes a proactive role in the process and can testify as to intent. In a quasi-pre-mortem probate proceeding in the guardianship context, the incapacitated person most likely will not take a proactive role. Instead, there is an inverse process – it is not a request bye testators to validate their wills, but rather an attempt by someone other than the testator to invalidate a will.
The broad latitude with respect to discovery granted in Matter of Steven S. is concerning as it takes a step back toward pre-2008 quasi-pre-mortem probate. The broad discovery granted may encourage a disgruntled beneficiary to bring an Article 81 proceeding to gain a tactical advantage for a later will contest. It is unclear if the fundamental rules of a traditional will contest in a Surrogate’s Court will be applied in the guardianship context. Whether you are a proponent of pre-mortem probate or not, the adoption of pre-mortem probate in New York should not be done through Article 81 guardianships as a strategic mechanism. Formal pre-mortem probate should be addressed by the Legislature, as opposed to quasi-pre-mortem probate in the guardianship context, which is ripe for strategic abuse.
Lori A. Sullivan is a partner in the Trusts & Estates Litigation and Trusts & Estates Practice Groups of Meltzer, Lippe, Goldstein & Breitsone. This article appears in a forthcoming issue of Trusts & Estates Law Journal, a publication of NYSBA’s Trusts & Estates Law Section. For more information, please visit NYSBA.ORG/TRUSTS.
Endnotes:
[1] NDCC Section 30.1-08.1-01.
[2] OH Rev. Code 2107.081; A.C.A Section 28-40-202.
[3] Alaska Stat. Section 13.12.530; N.H. Rev. Stat. Ann. Section 552:18; 12 Del. C. Section 1311; N.C.G.S.A. Section 28A-2B-1; S.D.C.L. Section 55-4-57, Section 21-24-3; Nev. Rev. Stat 30.040(2); See also, Todd A. Flubacher and Amy K. Kanyuk, Where There’s a Will, There’s Family, Trusts & Estates, March 2019.
[4] MHL § 81.29(d).
[5] 2023 N.Y. Slip Op. 50427(U) (Sup. Ct., Nassau Co. 2023).
[6] OH Rev. Code 2107.084.
[7] OH Rev. Code 2107.082.
[8] OH Rev. Code 2107.083.
[9] Id.
[10] ACA Section 28-40-202.
[11] Id.
[12] Id.
[13] Alaska Stat. Section 13.12.530.
[14] Nev. Rev. Stat 30.040(2).
[15] 12 Del. C. Section 1311.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Michael Sneeringer, et. al., Mom Liked Me Better, and She Will Prove It: Pre-Mortem Validation – Permanent Solution or Fad? Probate and Property, March/April 2021)
[21] N.Y. City Bar Committee on Trusts, Estates and Surrogate’s Courts, Comment on Permitting Pre-Mortem Probate in the State of New York, Jan. 15, 2009.
[22] Alexander A. Bove, Jr. and Melissa Langa, A Shortcut to Probate: Do It While You’re Alive, Massachusetts Lawyers Weekly, March 23, 2017.
[23] NY City Bar Association Committee on Trusts, Estates and Surrogate’s Courts, Comment on Permitting Pre-Mortem Probate in the State of New York, Jan. 15, 2009.
[24] Id.
[25] Id.
[26] Id.
[27] Daniel S. Fish, Elder Law: Guardianship Death of Pre-Mortem Probate, NYLJ, Feb. 11, 2008.
[28] MHL § 81.29(d).
[29] Matter of Ruby Slater, N.Y.L.J., p. 29, col. 4, Feb. 11, 2022, (Sup. Ct., Queens Co.), appeal dismissed 759 N.Y.S.2d 885 (2d Dep’t 2003).
[30] Id.
[31] Id.
[32] 307 A.D.2d 921 (2d Dep’t 2003).
[33] Id.
[34] 25 A.D.3d 804 (2d Dep’t 2006).
[35] N.Y.L.J., Aug. 18, 2003, p. 17, col. 2 (Sur. Ct., Nassau Co.).
[36] Id.
[37] 262 A.D.3d 502 (2d Dep’t 2006).
[38] MHL § 81.29(d).
[39] 2023 N.Y. Slip Op. 50427(U) (Sup. Ct., Nassau Co. 2023).
[40] Id.
[41] Id.
