Delaware Adopts Statute Allowing Pre-Mortem Will Validation

In August of 2015, Delaware adopted 12 Del.C.§ 1311. In so doing, Delaware joined Ohio, Alaska, Arkansas, New Hampshire, Nevada, North Carolina, and North Dakota as one of only a few states that offer testators the option of pre-mortem will validation. Pre-mortem will validation gives testators the ability to compel any will contests during the testator’s lifetime.

The new law provides that a testator must satisfy a notice requirement in order to successfully pre-validate their will. To do so, a testator must notify in writing any person named in the will as a beneficiary, any person with a future interest in the testator’s property if the testator were to die intestate, and any other person the testator wishes to be barred from challenging the validity of the testator’s will. That notice must explain that any contest to the will’s validity must be made within 120 days after the beneficiary’s receipt of notice (unless the testator dies before such 120-day period has elapsed). The notice must include a copy of the testator’s will. If a testator puts a beneficiary or interested party on notice of pre-validation and that person fails to challenge the will’s validity within the requisite 120-day period, then that notified person is barred from later contesting the will’s validity.