Living Probate: The Conservatorship Model

Abstract

Within the last year or so there has been a considerable revival of interest in the subject of living probate. In 1977 the state of North Dakota enacted the first living probate scheme to reach the American statute books in this century; another has been pending in the Ohio legislature, and the draftsmen of the Uniform Probate Code have begun work on a Uniform Ante-Mortem Probate Act. Living probate is addressed to the predicament of a testator who fears that after his death his estate may be subjected to a will contest in which it will be alleged that he lacked the mental capacity to execute his will. The recent legislation and draft legislation would permit the testator to bring suit against potential contestants in order to obtain an adjudication regarding his capacity while he is alive and best able to inform the determination. The main purpose of the present Article is to suggest a somewhat different theoretical and practical approach to structuring the living probate procedure. I shall characterize the procedure called for in the North Dakota act and in similar proposals as the Contest Model of living probate, in distinction to a Conservatorship Model that I shall advocate to be the better way. Part I of this Article reviews briefly the problem to which living probate is addressed and the alternatives that can presently be employed to forestall post-mortem capacity litigation in the absence of a living probate system. In Part II the Contest Model is examined and certain of its shortcomings are identified. Part III shows why a procedure modelled upon the existing principles and procedures for determining the capacity of the living in the conservatorship context commends itself as the superior design for living probate legislation.