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When Is an Execution Error Harmless?

Electronic Wills Raise New Harmless Error Issues

By Susan N. Gary

The focus of the harmless error doctrine is the intent of a decedent when the decedent created a writing the decedent may have intended to be a will. Using the harmless error doctrine, a court can excuse a defect in the execution formalities if the proponent of a will can establish, by clear and convincing evidence, that the testator intended the writing to be the testator’s will. The will formalities serve as proxies for testamentary intent, and the harmless error doctrine replaces strict compliance with the formalities with direct evidence of that intent.

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