Ante-Mortem Probate: Why Wait Until It's Too Late?

In 2011, copper heiress Huguette Clark died at the age of 104, leaving behind an estate valued at over $300 million. Clark, who had been divorced since 1929 and never had any children, waited until she was 98 years old to execute her first will. That will left most of her vast fortune to distant family members, many of whom she had never met. The complications began just six week later, however, when Clark executed a second will, expressly cutting out her family, and calling for most of her estate to be used to establish a foundation for the arts. Within months of the admission of Clark’s second will to probate, her distant and estranged family members contested the will, challenging, among other things, Clark’s mental capacity at the time of the second will’s execution. This challenge, of course, came only after Clark had passed away, making any determination of her competency far from infallible.

Although the Clark saga played out in a New York court, New Jersey, like New York, employs post-mortem probate procedures by which the mental capacity of a testator, like Clark, can only be considered after her death. In New Jersey, pursuant to Title 3B, any individual that is “18 or more years of age who is of sound mind may make a will” that sets forth the intended distribution of his or her estate at death. N.J.S.A. 3B:3-1. The will is submitted for probate after the testator’s death, at which time disappointed heirs may challenge its validity. The flaw in this system is that it allows for will contests, like that involving Huguette Clark, which all suffer from the same recurring evidentiary problem, i.e., the testator is no longer alive to testify as to his or her mental capacity and testamentary wishes. Moreover, will contests often occur many years after a will’s execution, when memories have faded or individuals with relevant knowledge have moved or passed away. As a result, these contests are generally rife with speculation and conjecture that not only increase the expense of the proceedings, but also leave the accuracy of their ultimate outcome in doubt.