Keeping Current—Probate

Keeping Current—Probate offers a look at selected recent cases, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.


HARMLESS ERROR RULE: Intent that document serves as will is measured at time of creation. In 2008, the decedent created a handwritten document disposing of her estate and gave it to her grandchild for safekeeping. With no witnesses, the document could not qualify as a will. Or. Rev. Stat. § 112.235. After the decedent’s death in 2016, the grandchild offered the document for probate under Oregon’s version of the harmless error rule, alleging clear and convincing evidence that the decedent intended the writing to be her will. Or. Rev. Stat. § 112.238. All parties agreed that the handwriting and the signature were the decedent’s. The court denied probate. The appellate court determined that the probate court had not focused on whether there was clear and convincing evidence of the decedent’s intent at the time the document was created but rather had made several findings that had little or no bearing on that question—for example, that the decedent had made statements inconsistent with the provisions of the document after signing it and that it was significant that the document made no mention of her “natural heirs.” The court therefore vacated the probate court’s decree and remanded for consideration of the facts under the correct standard. In Estate of Boysen, 441 P.3d 633 (Or. Ct. App. 2019).

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