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Ante-mortem probate, Conservatorship model, John Langbein, Mullane v. Central Hanover Bank & Trust Co., Goldberg v. Kelly, Guardian ad litem, Uniform Ante-Mortem Probate Act


Constitutional Law | Estates and Trusts | Property Law and Real Estate


Ante-mortem probate stands as a significant recent development in the American law of wealth succession. It confronts a problem that seriously impairs our probate system, the depredatious will contest, and promises to help revitalize the probate process. Already enacted in several states and currently under active study by the Joint Editorial Board of the Uniform Probate Code and the National Conference of Commissioners on Uniform State Laws, ante-mortem probate is likely to be widely implemented in some form. But while legislators and academics alike support ante-mortem probate as a general idea, disagreement has emerged over the specific form it should take.

A recent exchange in the Michigan Law Review offered two alternative schemes for ante-mortem probate, both of which contemplate a procedural design materially different from that of the few existing ante-mortem probate statutes. That new design was termed the conservatorship model, contrasting with the more traditional contest model. The exchange reflected a disagreement over what the authors assumed to be an unavoidable trade-off between two objectives: protection against post-mortem strike suits, and confidentiality of a will's contents during the testator's lifetime. The exchange did not, however, explore the possibility of an ante-mortem probate scheme that would achieve both objectives. What made these objectives appear incompatible was the assumption that any version of ante-mortem probate that would preclude post-mortem attacks on the will must necessarily provide due process protective features, requiring notice to all expectant heirs and legatees under earlier wills and the opportunity for them to appear in the proceeding.

In this Article, we shall challenge that assumption and propose a workable scheme of ante-mortem probate that both protects the testamentary plan against strike suits and preserves the confidentiality of the plan during the testator's lifetime. Section I reviews the conservatorship model as developed by Professor Langbein and identifies its objectionable features. In Section II, we address the general constitutional question of what property interests command due process protection. This context poses the constitutional problem narrowly, but our analysis has broad implications regarding constitutional notice requirements for any probate reform. Concluding in that Section that due process does not compel notice and a right to appear for expectant heirs and legatees, we prepare in Section III an administrative design for a no-notice version of ante-mortem probate. Our discussion anticipates prudential objections to the model, offering a possible exception to the no-notice provisions to favor the nuclear family, an exception we ultimately reject.

Publication Citation

Published in: Michigan Law Review, vol. 78, no. 1 (November 1979).