Living Probate: The Conservatorship Model

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 TI the Contest Model is examined and certain of its shortcomings are identified. Part ill 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.