Document Type


Publication Date



Conservatorship model, John Langbein, Guardian ad litem, Living-probate procedure, Post-mortem litigation, Ante-mortem probate


Estates and Trusts | Property Law and Real Estate


Reform-minded probate lawyers have discussed the idea of ante-mortem probate for many years. Yet, owing to several seemingly unavoidable defects, it has never attracted widespread support and only recently has been implemented anywhere in the United States. In his article, Living Probate: The Conservatorship Model, Professor John Langbein has eliminated many of those defects and has made the idea much more feasible. In doing so, he has contributed to the development of simple, convenient, and efficient systems of probate. However, his proposal introduces new flaws that threaten the practical working of his procedural model.

Basically, Langbein proposes that living probate be a non-adversary proceeding rather than a lawsuit between the testator and his heirs. Several problems that Langbein finds disturbing attend the adversarial proceedings of earlier attempts at ante-mortem probate. Among these are the potential disruption of family harmony, various disadvantages to the heirs apparent, and the absence of constraints against testators' overuse. To avoid these problems, Langbein advocates a court-appointed guardian ad litem who would represent all persons whose eventual property interests might be adversely affected by a determination that a testator had testamentary capacity to write his will and did so without undue influence. Specifically, Langbein seeks to prevent open family strife in will contests through an imaginative use of the familiar device of the guardian ad litem. Under Langbein's proposal, although the real contestants have the right to appear in the proceedings, they can also assert their interests anonymously by revealing their objections to the guardian ad litem. Anonymity reduces the disinclination many feel to offer evidence of incapacity even when the will ought to be contested. Moreover, the conservatorship model accommodates all the relevant interests, including those of potential heirs who are unborn or otherwise unascertained at the time of the proceeding. Finally, by requiring that counsel represent the testator and by shifting the costs of the guardian ad litem to the testator, the Langbein proposal discourages excessive use of the ante-mortem procedure. Only testators who genuinely need living probate—those whose wills are likely to be extortionately challenged because of the testator's advanced age or disabled condition—would wish to bear the predictably high costs of inhibiting post-mortem contests.

These advantages are undeniably real, but they are obtained at a great price: under any evaluation of his proposal, features of Langbein's procedure impose costs. Professor Langbein erroneously assumes that these costs are unavoidable under any system of living probate. I shall argue that these features are not essential and that they may be eliminated without sacrificing the advantages of his model. Providing testators alternative versions of his procedure would achieve substantially the same benefits while making living probate attractive to more testators than Langbein's model is likely to. Specifically, allowing testators to choose a nonbinding version of the conservatorship model would more completely suit the differing needs of testators, thereby mitigating the costs of living probate while preserving its advantages.

I should emphasize that Langbein and I agree on the basic proposition that some living-probate procedure is needed. Furthermore, his discussion convincingly establishes the case for a non-adversary approach. While we disagree on some material characteristics of such a procedure, it is worth reiterating that we share the view that testators ought to be able to avoid post-mortem litigation.

Publication Citation

Published in: Michigan Law Review, vol. 77, no. 1 (November 1978).