Peter T. Wendel (Professor of Law, Pepperdine University) has recently published an article entitled, California Probate Code Section 6110(C)(2): How Big is the Hole in the Dike?, 41 Sw. L. Rev. 387 (2012). The introduction to his article is provided below:
Like many states, California recognizes two principal types of wills: a formal/attested will, and a holographic will. A formal/attested will requires a writing that is signed by the decedent and properly witnessed. A holographic will also requires a writing that is signed by the decedent, but the document need not be witnessed; instead the material provisions must be in the decedent's handwriting and it needs testamentary intent. Whether a document qualifies as a valid will, be it an attested will or a holographic will, is a function of two variables: (1) the Wills Act formalities (i.e., the statutory requirements for a valid will); and (2) the jurisdiction's approach to how strictly a party must comply with the Wills Act formalities (i.e., strict compliance versus substantial compliance versus harmless error). Historically California courts applied strict compliance in analyzing whether a document complied with the California Wills Act formalities. Under strict compliance, the document must comply one-hundred percent with each and every requirement set forth in the applicable Wills Act formalities statute. Under strict compliance, even where there is clear and convincing evidence the decedent intended the document to be his or her last will and testament, the document does not qualify as a will if the document does not comply completely with the state's Wills Act formalities.
While strict compliance was the traditional method of applying and analyzing a jurisdiction's Wills Act formalities, this approach came under vigorous attack during the 1970's. Critics claimed the courts were giving too much weight to formalism at the expense of decedent's intent. In his landmark article Substantial Compliance With the Wills Act, Professor John H. Langbein argued that the execution threshold for a valid will should be lowered to substantial compliance so that a will that was not strictly compliant with the applicable Wills Act formalities could nonetheless be probated to preserve the intent of the decedent. In a subsequent article, Professor Langbein advocated an even more generous harmless error approach: as long as there is clear and convincing evidence that the decedent intended the document to be his or her will, the court should probate the will despite any deficiencies in its execution. The Uniform Law Commission ultimately agreed, adopting and promulgating for state adoption, as part of the Uniform Probate Code (“UPC”), a harmless error approach to determining whether a decedent complied with the jurisdiction's Wills Act formalities.
While a minority of states has followed the UPC's intent-based lead, repealing the traditional strict compliance approach in favor of either substantial compliance or harmless error, for years most states-- including California--stood firm, resisting the growing tide of opinion that strict compliance needlessly sacrificed testator's intent. In 2008, however, California's Legislature finally relented and amended California Probate Code section 6110 to include a harmless error provision. The California Legislature did not, however, adopt the UPC harmless error doctrine verbatim. Instead, as California is prone to do, it “modified” the UPC approach to create its own harmless error doctrine. In doing so, however, the California Legislature ended up with a statutory provision that raises interesting questions with regard to the scope of the doctrine.
The principal questions concerning the scope of the California harmless error doctrine can be highlighted by juxtaposing the California harmless error doctrine with the UPC doctrine. In particular, the UPC harmless error doctrine was designed to cure two recurrent classes of cases, cases where the intent-based movement believes the decedent's intent is needlessly ignored in the name of unyielding formalism: (1) the handwritten alteration to an attested will, and (2) the “near miss” attested will execution ceremony. One can get a sense of the scope of the California harmless error doctrine--and the questions concerning its scope--by comparing how these two recurrent classes of cases come out under the respective harmless error doctrines.