Probate Litigation

58 Pages Posted: 17 Mar 2021

See all articles by David Horton

David Horton

University of California, Davis - School of Law

Reid K. Weisbord

Rutgers Law School

Date Written: March 16, 2021


The field of wills is obsessed with deterring litigation. Supposedly, will contests—challenges to the validity of a testamentary instrument—are time-consuming, expensive, expose the testator’s eccentricities, and tear families apart. In turn, these factors give contestants the leverage to file “strike suits”: baseless allegations that are designed to obtain a shakedown settlement. This gloomy view drives policy on several fronts. First, it has stunted the growth of the harmless error rule: a doctrine that empowers courts to enforce documents that do not comply with the statutory formalities for executing a will. Second, estate planning lawyers use the specter of conflict to contain the spread of homemade testamentary instruments—especially the nascent market for online wills. Third, the desire to minimize the damage caused by lawsuits has rekindled interest in antemortem probate: a regime that resolves will contests during the testator’s lifetime. But although these debates rely on assumptions about probate litigation, we know little about the phenomenon. Indeed, our understanding of the issue comes largely from folklore, war stories, and the sliver of disputes that become reported appellate opinions. Thus, we can only speculate about the catalysts of these lawsuits, the harm they cause, or the terms of their confidential settlements.

This Article offers a glimpse inside the black box. Its centerpiece is an empirical study of 443 recent probate administrations from San Francisco, California. It follows these cases from the drafting of the will to the order for final distribution. In addition, it capitalizes on a state law that requires litigants to file settlement agreements in the record. Thus, it sheds new light on the causes and consequences of probate litigation. Some of the Article’s findings confirm that disputes over wills are an evil to be avoided. But others defy the conventional wisdom. For example, the Article discovers that the harmless error rule facilitates testamentary intent without making cases last longer or cost more, that online wills do not seem to be linked to litigation, that will contests often settle for a high percentage of the claim value, and that disputes over attorneys who appoint themselves executor are surprisingly common. Finally, the Article explains how these insights inform existing debates and highlight topics that deserve more attention.

Keywords: empirical, probate, litigation, harmless error, antemortem probate, living probate, will contests, incapacity, undue influence, executor

Suggested Citation

Horton, David and Weisbord, Reid K., Probate Litigation (March 16, 2021). University of Illinois Law Review, forthcoming 2022, Rutgers Law School Research Paper No. Forthcoming, Available at SSRN:

David Horton (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

Reid K. Weisbord

Rutgers Law School ( email )

Newark, NJ
United States


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