One of the more heated issues in the field of wills, trusts and estates is what degree of compliance the courts should insist on when applying a state's Wills Act formalities to a document and analyzing whether the document has been properly executed.
One of the more heated issues in the field of wills, trusts, and estates is what degree of compliance the courts should insist on when applying a state’s Wills Act formalities to a document and analyzing whether the document has been properly executed. The prevailing narrative is that there are only two options. In one corner is the traditional strict compliance approach: an old and tired combatant, but one that keeps hanging in there and can still put up a good fight. Strict compliance focuses on the formalities, insisting on absolute strict compliance with the Wills Act requirements, such that any defect, any failing in the execution ceremony, always and absolutely invalidates the instrument, thereby frustrating the decedent’s intent. In the other corner are Prof. Langbein’s substantial compliance/harmless error proposals: the young, up-and-coming combatant, who slowly but surely is winning bouts and many argue is the heir apparent to the crown. The substantial compliance/harmless error proposals focus on intent. So long as there is clear and convincing evidence that the decedent intended the document to be his will, the court should overlook any failings in the execution ceremony in the interest of promoting testamentary intent. The lines have been drawn, the states must decide: should they promote testamentary intent or the Wills Act formalities? Phrased that way, it seems like a rather simple choice. With apologies to Eddie Izzard, it is a bit like asking which you prefer: “cake or death?” See www.youtube.com/watch?v=rMMHUzm22oE (if you haven’t watched this before, it is a cult classic and his comments on the “flag theory” should be mandatory watching in every first-year property class).
The problem is, the narrative is flawed and has been from the start. There has always been a third option: a formality-based, court-created, flexible strict compliance approach.
The flawed narrative that traditional strict compliance and Prof. Langbein’s substantial compliance/harmless error proposals are the only options began with Prof. John Langbein’s landmark article: Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489 (1975). The article villainizes “literal” strict compliance as a monolithic approach to the Wills Act formalities where even the slightest mistake in the will execution ceremony inevitably dooms the document. The article repeatedly makes negative references to strict compliance that reinforce the image that it is harsh and relentless, all without any proof to back up the characterization. The article asserts that the law of wills has only two options: maintain the status quo (continuing to apply the “harsh and relentless” strict compliance approach) or adopt Prof. Langbein’s substantial compliance proposal. The article, however, never proves the characterization. Apparently, the legal community was so interested in Prof. Langbein’s substantial compliance proposal that it failed to examine critically his characterization of the state of the law.
In his follow-up article, Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law, 87 Colum. L. Rev. 1 (1987), Prof. Langbein modified his intent-based approach, emphasizing harmless error rather than substantial compliance. In the process, Prof. Langbein continued his assault on the extreme and unforgiving strict compliance approach:
[U]nder the rule of strict compliance, so long as some formalities remain, the least error in complying with any of them still invalidates the will. . . . [A] legal system should be able to preserve relatively high levels of formality, in order to enhance the safe harbor that is created for the careful testator who complies fully, without having to invalidate every will in which the testator does not reach the harbor.
Id. at 5–6 (emphasis added). Again, however, the characterization of strict compliance as absolute and unforgiving is based on minimal support.
Setting the Record Straight
The problem is that the issue of what degree of compliance the courts should require with the Wills Act formalities is not as simple as Prof. Langbein’s articles depict, nor is “strict compliance” as strict or as harsh and relentless as Prof. Langbein portrays it. There is a rather substantial body of case law that is inconsistent with his characterization, case law in which the courts found a way to validate the will in question even though it was not executed in literal strict compliance with the Wills Act formalities. Prof. Langbein arguably acknowledges this case law in his Substantial Compliance article when he notes that a number of the soft, fact-sensitive formalities have proved problematic for the courts under strict compliance, so problematic that the courts “have produced a vast, contradictory, unpredictable and sometimes dishonest case law in which the courts purport to find literal compliance in cases which in fact instance defective compliance.” Substantial Compliance, 88 Harv. L. Rev. at 525 (emphasis added). In his Harmless Error article, he elaborates on this point, describing the case law as evidence of the “fiction” that the courts use to find that the conduct in question “satisfied the strict compliance standard.” Harmless Error, 87 Colum. L. Rev. at 27–28.
The problem is Prof. Langbein’s treatment of this inconsistent case law is overly simplistic, if not outright flawed. A careful reading of the cases in question shows that, contrary to Prof. Langbein’s assertion, the courts do not use a “fiction” to find that the conduct in question “satisfied the strict compliance approach”; rather, the courts openly and honestly reject the strict compliance approach and instead adopt a court-created substantial compliance approach to the formality in question. The law of wills is replete with examples of case law in which the court rejects a literal strict compliance approach to the Wills Act formality in question and instead, either de facto or expressly, adopts a substantial compliance approach to the formality:
- The “presence” requirement: Historically, most Wills Acts required that the testator sign or acknowledge the will in the presence of two or more witnesses, and the witnesses had to sign the will in the presence of the testator. In analyzing whether the testator had performed in the presence of the witnesses, and whether the witnesses had performed in the presence of the testator, some courts applied the line of sight approach, but some courts applied the conscious presence approach. Conscious presence is nothing more than a court-created substantial compliance approach to the presence requirement.
- The order of signing requirement: The phrasing of a typical Wills Act implies that the testator is to perform before the witnesses can perform but must the testator? Some courts, adopting more of a literal strict compliance approach, ruled that the testator must sign or acknowledge the will before the witnesses sign it. Other courts, however, have adopted more of a substantial compliance approach, ruling that the order of signing is irrelevant so long as all of the parties sign the will before anyone leaves the room and everyone signs as part of one continuous execution ceremony.
- The publication requirement: Historically, many Wills Acts required the testator to “publish” the will to the witnesses. In construing and applying the publication requirement, some courts adopted an approach that required “literal compliance” with the requirement, but other courts rejected the strict compliance approach and instead expressly adopted a “substantial compliance” approach.
- The requirement that the testator sign at the end of the will: Historically, most Wills Acts required that the testator sign at the end of the will. Human nature being what it is, some testators signed the attestation clause rather than on the signature line. Some courts, applying more of a literal strict compliance approach, invalidated the whole will, while other courts refused to put form over substance and adopted more of a purposive, intent-based, substantial compliance approach and held the will to be validly signed.
- If the testator signed the will, but not at the end, the courts had to decide whether to void the whole will (more of a strict compliance approach) or to void only as much of the will as was below the signature (more of an intent-based substantial compliance approach). Not surprisingly, a number of courts openly and honestly adopted more of a substantial compliance approach: “Where the signature is placed at the close of the substantial provisions of the document, and the writing as signed is sufficient to effectuate the intention of the party signing it, the statute is substantially complied with, although there may be words following the signature which are unessential to the validity of the instrument.” Ward v. Putnam, 85 S.W. 179 (Ky. 1905) (emphasis added).
- The requirement that a will be entirely handwritten: Historically holographic wills had to be completely in the testator’s handwriting to offset the lack of witnesses. Literal strict compliance should have meant that if there was any material on the will that was not in the testator’s handwriting, the will was invalid. Yet from the earliest cases virtually all courts reasoned that, when the legislature provided that a holographic will must be “entirely” or “wholly” in the testator’s handwriting, the legislature did not use the term in its “absolute, utter and rigidly uncompromising sense.” See Bell v. Timmins, 58 S.E.2d 55 (Va. 1950). Instead, the courts fashioned a more common sense “substantial compliance” approach.
- The requirement that a holographic will be dated: If a jurisdiction requires that a holographic will must be “dated” to be valid, how complete must the date be in order to qualify? Again, not surprisingly, the courts split on the issue. Interestingly, the courts openly and honestly acknowledged the two approaches: “One may be defined as that line which holds to a strict compliance with the statute, and the other that holds that a substantial compliance with the statute is all that is required.” In re Hail’s Estate, 235 P. 916, 917 (Okla. 1923).
There are other examples. When taken together, the number of doctrines that expressly or de facto adopt and apply a substantial compliance approach to the Wills Act formalities is striking. No doubt literal strict compliance can be harsh and relentless, but the number and variety of court-created substantial compliance doctrines that find a way to validate a will that literal strict compliance would invalidate are impressive, particularly when juxtaposed with Prof. Langbein’s characterization of the state of the law.
Prof. Langbein’s Approach vs. the Courts’ Approach
Inasmuch as the law of wills contains a rather impressive body of case law that adopts and applies an intent-based, substantial compliance approach, and Prof. Langbein’s initial proposal was a substantial compliance approach, a logical question that arises is why he summarily dismissed the case law rather than invoking it to support his proposal. One can only speculate, but one possible explanation is that while both approaches are substantial compliance in nature, they could hardly be more different.
Prof. Langbein’s substantial compliance proposal adopts a rather holistic approach, focusing more on the Wills Act and its purposes than on the formalities:
The finding of a formal defect should lead not to automatic invalidity, but to a further inquiry: does the noncomplying document express the decedent’s testamentary intent, and does its form sufficiently approximate Wills Act formality to enable the court to conclude that it serves the purposes of the Wills Act?
Substantial Compliance, 88 Harv. L. Rev. at 489. Assuming, arguendo, it can be proved that the defectively executed instrument expresses the decedent’s testamentary intent, then Prof. Langbein proposes that the analysis shift to whether the noncomplying document’s “form sufficiently approximate[s] Wills Act formality to enable the court to conclude that it serves the purposes of the Wills Act.” The disparate Wills Act formalities are bundled together: “[Does the document’s] form sufficiently approximate Wills Act formality to enable the court to conclude that it serves the purposes of the Wills Act?” The focus is not on the parties and how close they came to meeting the requirements of the formality in question. Nor is the focus on the formality per se. Instead the focus shifts to the document’s form and whether that form sufficiently approximates Wills Act formality to enable the court to conclude that the document’s form serves the purposes underlying the Wills Act. The practical effect of the analytical complexity is to shift the focus more to the final step of the analysis: whether the document’s form “serves the purposes of the Wills Act.” That obviously gives rise to the simple question: what are the purposes of the Wills Act?
Prof. Langbein’s substantial compliance and harmless error approaches assume that the sole purpose of the Wills Act formalities is to serve testator’s intent. If a formality stands in the way of promoting testamentary intent, and if the formality cannot be justified under the circumstances of the case, the formality should yield: the court should dispense with the formality and probate the will. All other considerations, including questions concerning compliance with the formalities set forth in the Wills Act, should yield when there is clear and convincing evidence of testator’s intent.
There is no doubt that a decedent’s testamentary intent is an important public policy consideration, but it is not the only relevant public policy consideration. It seems rather obvious that one of the important public policy considerations served by the Wills Act is to help control the costs of administration associated with ascertaining and giving effect to testator’s intent. Although Prof. Langbein was one of the first to acknowledge the economic benefits of the Wills Act, his discussion indicates that the economic benefits are not an important public policy consideration in their own right but rather are more a tangential or secondary benefit at best. In arguing that his substantial compliance proposal should be adopted, Prof. Langbein implicitly argues that the benefits associated with the “individual justice” served by giving effect to a decedent’s testamentary intent should prevail unless the costs associated with substantial compliance rose to the level of “disorder and uncertainty in the patterns of transfer and testation.” Substantial Compliance, 88 Harv. L. Rev. at 523. Not only is that wording of the analysis inconsistent with traditional economic analysis, but such vague and nontraditional phrasing makes it difficult to measure and assess such costs. Accordingly, the likelihood one will conclude that the clear and easy-to-assess benefits of his proposal outweigh the vague and uncertain costs is increased because the economic costs are not fully appreciated.
In contrast to Prof. Langbein’s functional approach to the public policy considerations underlying the Wills Act formalities, the court-created, flexible strict compliance approach is more pragmatic. No doubt the courts would agree that in an ideal world, when an individual has expressed his or her intent about who should get his or her property following his or her death, such intent should be ascertained and given effect regardless of the costs. Only then would the legal system fulfill its general philosophy of “giving effect to an intentional exercise of” the decedent’s “power to determine his successors in ownership.” See Ashbel G. Gulliver & Catherine J. Tilson, Classification of Gratuitous Transfers, 51 Yale L.J. 1, 2–3 (1941).
The courts realize, however, that we do not live in such an ideal world; we live in a world of limited resources. In a world of limited resources tough decisions have to be made about how those limited resources should be distributed among different needs. This is particularly true for public resources. With myriad competing claims on public resources, it is poor public policy to spend excessive public funds on ascertaining a testator’s intent when imposing reasonable formalities on testators, reasonably interpreted and reasonably applied, can save society money and permit society to allocate its scarce resources to more pressing needs. Limiting the costs of administration associated with ascertaining and giving effect to a decedent’s testamentary intent is a reasonable and important public policy consideration, just as important as ascertaining and giving effect to a decedent’s testamentary intent.
The challenge in creating and applying a Wills Act is how to balance the competing public policy considerations of testator intent, costs of administration, and potential for misconduct. Prof. Langbein’s approach focuses solely on the outcome in a given case and fails to consider (1) whether the resulting precedent may encourage third parties to engage in future misconduct in the hope that they may be able to convince the court the latter case is indistinguishable from the prior case and (2) whether the precedent established by the case at bar may result in increased future costs of administration because future testators may be more complacent in how they express their intent. In economic terminology, Prof. Langbein’s approach fails to take into account the negative externalities a precedent may create.
That, in essence, is what distinguishes the court-created, flexible strict compliance from Prof. Langbein’s holistic substantial compliance/harmless error approach. The court-created, flexible strict compliance approach rejects the holistic approach in favor of a more formality-based/scenario-based approach. The courts ask whether the conduct in question sufficiently meets the purposes of theformality, not whether the document in question “sufficiently approximate[s] Wills Act formality to enable the court to conclude that it serves the purposes of the Wills Act.” In doing so, the court-created, flexible strict compliance approach balances the competing public policy considerations of giving effect to a testator’s intent while at the same time minimizing the costs of administration and the potential for fraud or other misconduct. When a formality-based, substantial compliance approach permits the court to give effect to the will without unduly increasing the costs of administration and the potential for fraud or other misconduct, the substantial compliance approach should be adopted. Otherwise, the court should apply the traditional strict compliance approach to the formality.
Prof. Langbein phrased the issue as which is better: traditional strict compliance or his substantial compliance/harmless error proposals. If presented with only these two options, a strong case can be made that Prof. Langbein’s substantial compliance/harmless error proposals are better. The problem with that analysis, however, is that most states do not apply traditional strict compliance. Most jurisdictions have adopted some form of flexible strict compliance (depending on the number of court-created substantial compliance doctrines the jurisdiction has adopted). The issue then becomes whether the marginal benefits of Prof. Langbein’s substantial compliance/harmless error proposals are worth the increased costs of administration and potential for fraud or misconduct. As compared to flexible strict compliance, how many more wills will be probated (admittedly more), but at what additional cost of administration and at what increased potential for fraud or other third-party misconduct? Are the marginal benefits of the holistic approach to substantial compliance/harmless error greater than the marginal benefits associated with the formality-based flexible strict compliance approach? The answer to that question is far from obvious.
Now that the third option, flexible strict compliance, has been articulated, may the debate over which approach is best begin anew.