Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, June 1, 2005

Substantial Compliance With Will Formalities

In his comment, Sean P. Milligan discusses The Effect of a Harmless Error in Executing a Will: Why Texas Should Adopt Section 2-503 of the Uniform Probate Code, 36 St. Mary's L.J. 787 (2005).

Here is Mr. Milligan's conclusion [footnotes omitted]:

Statutory formalities for the execution of a will are useful insofar as they promote the essential purposes of facilitating the testator's intent. The danger that these formalities impose is when they actually begin working against the testator's intent. By adopting a harmless error rule similar to the rule adopted in several other jurisdictions, Texas probate courts will be able to address the issue of intent more directly, rather than being bound by the incomplete provisions of the Probate Code. The law on wills should be about results; and the end result should be to probate wills when there is clear and convincing evidence that the testator intended to create a will. The clear and convincing evidence standard serves essentially the same function as statutory execution requirements. By requiring the proponent of a will to provide clear and convincing evidence of testamentary intent, the testator is protected against unwanted imposition and fraud from interested third parties. The harmless error rule does not abrogate the rule on statutory formalities. Rather, statutory formalities have increased importance under a dispensing power provision: The larger the departure from certain statutory formalities, the more difficult it will be for the proponents of the will to establish clear and convincing evidence that the decedent intended the document to be his or her final testamentary statement. Indeed, this is the guiding principle for jurisdictions which have adopted the harmless error rule. As discussed, a written instrument is the most difficult to excuse under a "harmless error" analysis, followed by the issue of a testator's signature.

Reluctance in reforming the law of strict compliance with statutory formalities is understandable - the execution requirements of a valid will are centuries old. The reluctance, however, should not deter courts from considering the relevance of will formalities, and how they operate under modern problems. With the advent of nonprobate transfers and the judicial doctrine of substantial compliance, the notion that the law of wills should not adapt to modern times is misguided and unrealistic. The harmless error rule does not threaten the traditional precept that will formalities still serve a vital function; rather, the rule supports the underlying rationale of will formalities, which is to determine the intent of the testator. In fact, it is not will formalities per se, but misplaced judicial insistence on will formalities which disrupts testamentary intent.

The suggestion that a harmless error rule will encourage litigation is also a dubious proposition. South Australia's experience with the harmless error rule militates against the idea that the harmless error rule fosters frivolous litigation. Furthermore, American jurisdictions tend to narrowly construe the rule, which would discourage frivolous claims.

Given the unwarranted fear that the harmless error rule will burden probate courts with frivolous litigation, adoption of the harmless error rule makes sense. But assuming, arguendo, that the harmless error rule will substantially increase probate claims, the Texas Legislature should still adopt the rule because the benefits of the harmless error rule clearly outweigh the risk of increased litigation.

A standard that allows the proponent of a will to demonstrate the decedent's testamentary intent by clear and convincing evidence is an efficient way to ascertain testamentary intent. Statutory formalities remain necessary in order to protect against unwanted alteration of testamentary intent. However, courts should be prevented from imposing statutory formalities and invalidating otherwise valid wills where the testator merely makes a clerical error; the harmless error rule ensures the proper application of statutory formalities, which is to determine whether the testator intended to create a will. A harmless error rule eases the tension between a court's responsibilities to observe strict compliance with will formalities, while acknowledging clear and convincing evidence of a testator's intent.


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