ESTATE AND FINANCIAL PLANNING
Wills Act Formalities: How Much Compliance Is Enough?

By John V. Orth

This article addresses the debate over whether a relaxation of Wills Act formalities, specifically the adoption of Pro-fessor John Langbein’s harmless error rule, actually results in a reduction in the number of "valid" wills being de-nied probate owing to noncompliance with required formalities. Responding to an article by Stephanie Lester in the fall 2007 issue of Real Property, Trust and Estate Law Journal ("Admitting Defective Wills to Probate: Twenty Years Later," volume 42, pages 577-579), the author questions whether allowing courts to dispense with certain formalities on a case-by-case basis is preferable to the objective criteria the formalities provide.

Whenever the law makes the effectiveness of a legal transaction dependent on compliance with formal require-ments, problems inevitably arise with transactions that may have been intended to be effective but were not executed with the necessary formalities for one reason or another. For almost 500 years the law of wills has required that de-vises be in writing, and for more than 300 years it has required that the writing be signed by the testator and wit-nessed by a certain number of competent witnesses. Lawyers have grown accustomed to supervising the proper exe-cution of written attested wills, and testators have recognized the solemnity of the occasion. Recently, the traditional requirements have been criticized because they have resulted, in some cases, in the ineffectiveness of what appear to have been intended to be valid wills. Ever since witnesses have been required, there have been problems concerning their number and competency and the formalities of their attestation.

Reducing the required formalities certainly would lessen the number of problem cases, but the retention of any formal requirement would mean that form could still defeat intention in some circumstances. How much compliance with Wills Act formalities is enough? The issue has been framed recently as a conflict between "strict compliance," "substantial compliance," and a standard that would permit disregarding "harmless errors." The modern debate be-gan in 1975 with Professor Langbein’s article in the Harvard Law Review ("Substantial Compliance with the Wills Act," volume 88, pages 489-534) arguing that substantial rather than strict compliance should be sufficient. It be-came a debate by Professor Langbein with himself when his study of probate cases in Australia caused him to aban-don his advocacy of substantial compliance a dozen years later and instead advocate a harmless error standard. In the fall 2007 issue of Real Property, Trust and Estate Law Journal, Stephanie Lester updated the professor’s re-search in Australia, leading her to repeat his call for adoption of the harmless error rule.

The debate is not new. The early common law did not recognize wills of land at all, causing legal title to real property to pass at death only by inheritance; in consequence, ingenious lawyers had to develop alternatives such as the declaration of uses (a forerunner of the modern trust) as a means to particular succession. The original Wills Act of 1540 was part of the political settlement that accompanied the attempt by King Henry VIII to do away with uses. Land was for the first time made devisable by "last will and testament in writing," but the statute required no signa-ture or other formality. Over the next century, courts struggled to determine whether particular writings expressed a decedent’s testamentary intent. The Statute of Frauds of 1677 increased the necessary formalities by requiring that a will be signed by the testator or by some other person in the testator’s presence and that it be subscribed by "three or four credible witnesses." Even this proved unsatisfactory, and the Wills Act of 1837 tightened the requirements. Thereafter, wills had to be in writing and subscribed; furthermore, the testator’s signature had to be made or ac-knowledged in the presence of two or more witnesses "present at the same Time," who attested and subscribed the will "in the Presence of the Testator."

Legislation in the various American states generally was modeled either on the original Statute of Frauds or on the Wills Act of 1837. In Australia, states originally followed the Wills Act; although in 1975 the state of South Australia implemented the harmless error rule, while in 1981 the state of Queensland adopted the standard of sub-stantial compliance—offering "social laboratories" in which to test Professor Langbein’s proposals. Stephanie Les-ter extended Langbein’s investigation and reviewed numerous cases decided by Australian courts over the last 20 years, cataloging cases of wills probated without proper attestation or without the testator’s signature. Lester con-cluded that "courts applying the harmless error rule continue, overall, to be extremely successful in distinguishing cases where the decedent accidentally or mistakenly failed to comply with Wills Act formalities from those where he hesitated to finalize his intentions or where the will was the subject of fraud." By contrast, "case law from Queensland demonstrates [that] substantial compliance can frustrate testator intent."

With all respect, I would ask: How can we possibly know this? Whether the courts put the putative wills in the right category depends on whether they correctly evaluated the testimony concerning the documents in question. Although a reader of the reports can come to the same conclusion as the courts based on the reported facts, there is no way to know whether it was the right decision or not. All that the data show is that some defective wills were probated and some were not.

As we retrace our steps through the centuries, we return at last to the bare writing first required in the original Wills Act of 1540. But as the formal requirements of execution are stripped away, it may be time to ask: Why stop our journey into the past at 1540? Why require a written will at all? Only on the assumption that the writing ex-presses the testator’s intent does any relaxation of formalities—whether substantial compliance or harmless error—bring us any closer to the goal of effectuating the testator’s intent. With modern technology for recording voice and visual images—not to mention electronic documents—it may seem odd to remain tied to written instruments, first required for wills in England barely a century after Gutenberg’s invention of movable type, when the printed word began its long ascendance in Western culture—an ascendance now seemingly coming to an end.

Of course, the ineluctable problem remains of determining the intention of a person now dead, particularly in light of often-conflicting evidence offered by persons with an interest in the outcome. If we are willing to trust the judges to determine whether a certain document was intended to be a will, why should we not be willing to trust them to determine the general issue: what the decedent wanted done with his property after his death? But do we really trust the judiciary to decide each case on its merits without any guidance except to "do the right thing"? If there is one theme in the wills literature comparable to the criticism of the courts for requiring strict compliance, it is criticism of the courts for allowing apparently valid wills to fail when the disposition is unpopular or unconventional. Some objective criteria by which persons may signal their final desires with respect to succession to their property are desirable, thus allowing subsequent fact-finders to proceed quickly and inexpensively to process their estates. But, that’s what the formalities were for!

FOR MORE INFORMATION ABOUT THE REAL PROPERTY, TRUST AND?ESTATE LAW SECTION
- This article is an abridged and edited version of one that originally appeared on page 73 of Real Property, Trust, and Estate Law Journal, Spring 2008 (43:1).
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- CLE and Other Educational Programs: Watch out for RPTE’s monthly CLE teleconferences; for more information, please visit our website. - Books and Other Recent Publications: Foreclosure Law and Related Remedies, 2d ed. (AZ, CO, CT, DE, KY, MA, MN, NV, SC, VT); A Practical Guide to Commercial Real Estate Transactions: From Contract to Closing, 2d ed.; The Insured Stock Purchase Agreement, 2d ed., with sample forms; An Estate Planner’s Guide to Qualified Retirement Plan Benefits, 4th ed.

John V. Orth is a professor of law at the University of North Carolina School of Law in Chapel Hill. He may be reached at jvorth@email.unc.edu.

Copyright 2009

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