Thursday, April 9, 2020
David Horton and Reid K. Weisbord recently published an Article entitled, COVID-19 and Formal Wills, Wills, Trusts, & Estates Law eJournal (2020). Provided below is an abstract of the Article.
Most Americans do not have a will, but as COVID-19 sweeps through the country, some Americans urgently need an estate plan. Unfortunately, probate law makes it difficult to create a will during this crisis. Indeed, twenty-five states and the District of Columbia recognize only one type of will: a “formal” will executed in compliance with the Wills Act. Under this ancient statute, wills must be written on paper, signed by the testator, and also witnessed by two people who were present at the same time. Thus, the Wills Act’s insistence that parties physically occupy the same space poses an unforeseen barrier to testation during a time of widespread quarantine.
Yet the pandemic has also arrived during a period in which wills law is in flux. In the last two decades, a handful of jurisdictions have begun excusing harmless errors during the will-execution process. And, in an even sharper departure from the Wills Act’s stuffy norms, four states have recently authorized electronic wills.
This Essay argues that COVID-19 vividly highlights the shortcomings of formal wills. Indeed, the outbreak has exposed the main problem with the Wills Act: it makes will-making inaccessible. As a result, we urge lawmakers in states that cling to the statute to liberalize its requirements. Our argument proceeds in three Parts. Part I details the social value of will-making. Part II describes the Wills Act and explains why it creates formidable obstacles for testators who are caught in the jaws of a pandemic. Part III explores three ways in which policymakers can solve this problem: by permitting holographic wills, adopting the harmless error doctrine, and passing electronic will legislation.