Iowa Supreme Court Says No Will Challenge Before Testator's Death

February 19, 2021 | Kitt Tovar Jensen

On February 19, 2021, the Iowa Supreme Court considered whether an interested party can challenge the validity of a will while the testator is alive. The Court found that neither Iowa Code § 633.637 nor any other section of the Probate Code allows a predeath will challenge.


The testator, who suffers from schizoaffective disorder and severe autism spectrum disorder, has been in a voluntary conservatorship since 1991. He lives in a long-term care facility with a bank serving as his conservator. In 2017, his sister learned that the testator created a will in 1992 and another in 2015. Both wills were prepared by an attorney. As of 2018, the testator had over $1.9 million in assets.

The testator’s sister and her husband petitioned for a declaratory judgment to determine if the testator had the testamentary capacity to execute either will and, if not, to have the wills set aside. The conservator filed a motion to dismiss claiming the issue was moot because the testator was still alive and that the petitioners lacked standing because they did not have a vested interest in the estate. The conservator asked the court to sanction the petitioners under Iowa Rule of Civil Procedure 1.413 by ordering them to pay the conservator’s attorney fees. The court denied the motion to dismiss and the conservator filed a motion to enlarge.

In response to the conservator’s motion, the district court limited the action to determine the testator’s present testamentary capacity, but not his testamentary capacity at other times. The court also required petitioners to pay the conservator’s legal fees. The petitioners filed this interlocutory appeal.

Supreme Court Decision

On appeal, the petitioners argued that Iowa Code § 633.637 permits an interested third party to seek a judicial determination of a ward’s testamentary capacity while he is still alive. The testator’s sister claimed that she was an interested third party because she would inherit under intestacy laws if the wills were declared void.

A ward for whom a conservator has been appointed shall not have the power to convey, encumber, or dispose of property in any manner, other than by will if the ward possesses the requisite testamentary capacity, unless the court determines that the ward has a limited ability to handle the ward’s own funds. If the court makes such a finding, it shall specify to what extent the ward may possess and use the ward’s own funds.

Any modification of the powers of the ward that would be more restrictive of the ward’s control over the ward’s financial affairs shall be based upon clear and convincing evidence and the burden of persuasion is on the conservator. Any modification that would be less restrictive of the ward’s control over the ward’s financial affairs shall be based upon proof in accordance with the requirements of section 633.675.

Iowa Code § 633.637 (emphasis added).

In rejecting the petitioners’ argument and affirming the district court’s decision, the Court found that there was nothing in the text of the statute that created rights in a putative beneficiary or other third party to challenge the validity of a ward’s will before the ward dies. The Court stated that if the legislature had intended to create such a right in an interested party, it would have done so. In support of its conclusion, the Court pointed to many examples of statutory rights and powers granted to “interested persons.”

The Court also ruled that a testator in a conservatorship does not need court approval to execute a will as long as he possesses “the requisite testamentary capacity….” See Iowa Code § 633.637. The statute, the Court found, does not create a presumption that a ward in a voluntary conservatorship lacks testamentary capacity. Instead, the phrase “other than by will” expressly exempts wills from the statute’s requirement that the court preapprove property transfers. 

The Court held that Iowa Code § 633.637 could not be used to judicially create a new, separate mechanism for a predeath will contest. The Court noted that a will cannot be admitted to probate until after the testator dies. In Iowa, as well as in most other states, challenges to the validity of a will must wait until after the testator’s death. Additionally, interrelated claims to a will contest cannot advance outside of the normal probate proceedings. See Youngblut v. Youngblut, 945 N.W.2d 25, 38 (Iowa 2020).

The Court explained that there were good, practical reasons to stick with the legislature’s chosen statutory scheme. The challenge may become unnecessary if a testator chooses to amend a will, if the property in the will is no longer in the testator’s possession at death, or if the beneficiary predeceases the testator. Additionally, this prohibition allows a will to remain confidential during the testator’s life.

Conservator’s Attorney Fees

While upholding the district court’s decision as to the will dispute, the Court did reverse the district court’s fee shifting order. Normally, a losing party will not pay the prevailing party’s attorney fees. Unless a party acts in bad faith, attorney fees are only recoverable by statute or under contract. The Court found that in the present case there was no statute or contract that required the petitioners to pay the conservator’s attorney fees. While ultimately unsuccessful, the petitioners’ claims were not frivolous.