Wills left behind by the dearly departed sometimes can disappoint friends and relatives. Perhaps the deceased person gave everything to one child and nothing to another, or they decided to leave their money to charity instead of their spouse.
When such contentious bequests are made, it is not uncommon for the will to be disputed. But what if family members discover the contents of a will before the person dies and want to contest it there and then?
In some American states there is a mechanism to do just that. In Alaska, Arkansas, Delaware, Nevada, North Dakota, and Ohio, people can legally challenge the contents of someone’s will while they are still alive.
In each of these states, the court will inform all named beneficiaries of a will of its contents, as well as family members who have been left out. The parties then each have a limited time in which they are able to challenge the will. If they fail to begin proceedings before the deadline, they will not be allowed to take any legal action once the person who made the will has died.
It certainly is an interesting way to approach the amount of litigation surrounding wills and estates. However, there are problems. If the person making the will wishes to make any changes to it, the whole process begins again, thereby creating the potential for numerous challenges to the same document over the course of someone’s life.
Another possible issue with a pre-death challenge is the question of jurisdiction across state lines. What if a person’s will is challenged while they live in one state, and then they move to another where such challenges are not allowed?
There is nothing comparable in English law, although certain people can challenge a deceased person’s estate. Additionally, the test for mental capacity to make a will requires the will maker to appreciate the expectations of their close friends and family. However, the law in certain parts of America has gone too far.
By allowing others to see and challenge a will during someone’s lifetime there is the likelihood that people will take into account factors or people they wouldn’t otherwise, and that erodes a person’s freedom of choice. Yes, it does help guard against people exploiting the vulnerable, but such cases are few and far between. Enabling challenges to a person’s will to be made during their lifetime will have a far greater effect.