Wills, Trusts & Estates Prof Blog

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Texas Tech Univ. School of Law

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Wednesday, May 7, 2014

Article on Will Formalities

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Anthony R. La Ratta and Melissa B. Osorio (Archer & Greiner, P.C.) recently published an article entitled, What’s in a Name?: Writings Intended as Wills, 28 Prob. & Prop. 47 (May/June 2014).  Provided below is the introduction:

What is a will, but the sum of its formalities?  By some other name, would it be so valid?  In recent years, the definition of the term “will” has changed dramatically.  The type of writing necessary to create a valid will is evolving, and courts are moving away from adherence to strict compliance.  Probate courts across the country, faced with everything from DVDs to post-it-notes, are admitting to probate these nontraditional “documents” as writings intended as wills.

This trend away from strict formalities has developed in large part by the adoption of section 2-503 of the Uniform Probate Code in 1990.  The UPC was originally promulgated in 1969 (last amended and revised in 2010). See Unif. Probate Code, Prefatory Note at 24 (amended 2010).  Historically, the execution of a valid will required strict compliance with certain statutory formalities.  With the adoption of UPC Section 2-503, however, there is now a statutorily created exception for writings that contain harmless execution errors or mistaken terms. Roger W. Andersen, Understanding Trust and Estates 56-57 (LexisNexis, 4th ed. 2009).  This doctrine is known by various names, including, but not limited to, “dispensing power,” “excused non-compliance,” and most commonly, “harmless error.” Id.  The adoption of the harmless error doctrine is changing the landscape of estate litigation and bringing new meaning to the term “last will and testament.”

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