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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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Fatal Error Pop Up Box

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History and Purposes of the Doctrine in the United States

The Uniform Probate Code § 2-503

The Uniform Law Commission added a harmless error provision to the Uniform Probate Code (UPC) in 1990. UPC § 2-503 requires that the testator’s intent that the writing be the testator’s will be proved by clear and convincing evidence. The Uniform Law Commission got its inspiration from Australia but changed the standard from that used in Australia, where the standard was “beyond a reasonable doubt.” The UPC also expanded application of the harmless error rule to cover revocation as well as execution.

The official Comments to UPC § 2-502 reflect the expectation, based on evidence from South Australia, that harmless error would be used primarily to address two common problems: defective attestation and attempts by a testator to amend a previously executed will without will formalities for the codicil. The first category of mistakes includes a will with only one witness or a will that is notarized but not attested. Because a holographic will, where permitted, does not require witnesses, the UPC’s harmless error provision “reduces the tension between holograph wills and the two-witness requirement for attested wills.” UPC § 2-502, comment. The second category of mistake occurs when a testator strikes out a name or a gift in a will and writes in a different name or gift. In some states (not Oregon) the partial revocation will be effective, but the attempted addition will not be effective unless the change complies with will formalities. The UPC adopted harmless error with these two problems in mind, although the rule as drafted is not limited to these problems and has been applied more broadly.

The keys to the harmless error rule are that it focuses on the testator’s intent that the writing be the testator’s will (or a revocation of a will) and that the proponent of the writing must establish that intent by clear and convincing evidence. Because of this high standard of proof, courts are much more likely to excuse a lack of attestation than a lack of the testator’s signature. The UPC Comments state, “[w]hereas the South Australian and Israeli courts lightly excuse breaches of the attestation requirements, they have never excused noncompliance with the requirement that a will be in writing, and they have been extremely reluctant to excuse noncompliance with the signature requirement.” The Comments note that the typical case in which an Australian court has excused a lack of the testator’s signature has involved documents prepared for spouses who sign each other’s documents. Because the decedent signed the spouse’s will, the document being probated lacked the decedent’s signature, but the intent of the spouses that the documents be their wills was clear. See, e.g., Estate of Blakely, 32 S.A.S.R. 473 (1983). A few recent cases from Australia, described later in this outline, have applied harmless error more expansively, but the goal of giving effect to the testator’s intent while meeting the heightened evidentiary standard remains.

The UPC Comments emphasize that the procedural standards are “appropriate to the seriousness of the issue.” The Comments explain that the goal is “to retain the intent-serving benefits of [the will formalities] without inflicting intent-defeating outcomes in cases of harmless error.”

The Restatement

The Restatement (Third) of Property: Wills and Other Donative Transfers (1999) provides another source of information about the harmless error rule. According to the Restatement:

[T]he purpose of the statutory formalities is to determine whether the decedent adopted the document as his or her will. Modern authority is moving away from insistence on strict compliance with statutory formalities, recognizing that statutory formalities are not ends in themselves but rather the means of determining whether the underlying purpose has been met. A will that fails to comply with one or another of the statutory formalities, and hence would be invalid if held to a standard of strict compliance with the formalities, may constitute just as reliable an expression as a will executed in strict compliance.

Restatement (Third) of Property: Wills & Other Don. Trans. § 3.03, comment b.

The Restatement also describes a sort of hierarchy of formalities, similar to that described in the UPC Comment. The Restatement explains that “[t]he requirement of a writing is so fundamental to the purpose of the execution formalities that it cannot be excused as harmless under the principle of [the] Restatement. Only a harmless error in executing a document can be excused . . . .” Restatement (Third) of Property: Wills & Other Don. Trans. § 3.03, comment b. Further, “[a]mong those defects in execution that can be excused, the lack of a signature is the hardest to excuse. An unsigned will raises a serious but not insurmountable doubt about whether the testator adopted the document as his or her will.” Id.

Enactments and Adoptions in the United States

To date, 11 states have adopted some version of a harmless error statute. Six of these states have followed UPC § 2-503. They are Hawaii (Haw. Rev. Stat. Ann. § 560:2-503 (2019)), Michigan (Mich. Comp. Laws Ann. § 700.2503 (2019)), Montana (Mont. Code Ann. § 72-2-523 (2019)), New Jersey (N.J. Stat. Ann. § 3B: 3-3 (2019)), South Dakota (S.D. Codified Laws § 29A-2-503 (2019)), and Utah (Utah Code Ann. § 72-2-503 (2018)).

Four states, California (Cal. Prob. Code § 6110(c)(2) (2019)), Colorado (Colo. Rev. Stat. § 15-11-503 (2019)), Ohio (Ohio Rev. Code Ann. § 2107.24(A)), and Virginia (Va. Code Ann. § 64 .2-404 (2019)), require the decedent’s signature. Colorado and Virginia create an exception if two testators sign each other’s will, and Colorado permits proof that the decedent acknowledged the document as the decedent’s will in lieu of the decedent’s signature. Ohio adds a requirement that the decedent signed the document in the “conscious presence” of two witnesses, and the statute explicitly excludes telephonic or electronic presence.

Oregon’s statute, Or. Rev. Stat. § 112.238 (2019), follows the UPC and does not require the decedent’s signature, but Oregon adds other requirements. The section requires the proponent of the document to give notice to heirs and devisees under prior wills and then provides for a 20-day period for any person receiving notice to object before the court makes its determination. Although the document cannot be admitted to probate before the end of the 20-day period, the court can appoint a special administrator if necessary. Also, if the court determines that the writing was a will, codicil, or revocation, the court must prepare written findings of fact supporting the determination and enter a limited judgment to that effect.

In addition to the 11 statutory jurisdictions, the harmless error doctrine appears to have been judicially adopted in Pennsylvania by Kajut Will, 2 Fiduc.2d 197, 22 Pa. D. & C.3d 123 (Pa. Orphan’s Ct.1981). In Kajut, a blind testator signed his name by making a mark on a signature line above his typed name. The Pennsylvania statute required that if a testator signed by mark, the testator’s name must be “subscribed in his presence before or after he makes his mark.” Kajut’s lawyer had typed the name on the will before bringing the will to Kajut, so the name was not subscribed in his presence. The will was challenged for failure to meet the execution formalities. The court considered the reasons for the formalities and found that the testator had substantially complied with the requirements and that the will “obviously expressed the testator’s intention concerning the distribution of his estate.” The will was valid.

The Harmless Error Doctrine in Other Countries

Israel became the first country to adopt a form of the harmless error rule in 1965. Courts interpreted the statute narrowly, and then Israel revised the statute in 2004. The revised statute requires strict compliance for fundamental parts of the will—the will must be a written document with two witnesses or a holographic will that has been entirely handwritten. The court can excuse non-compliance with other requirements, but only if the court has “no doubt that the will represents the true and free wishes of the testator . . . .” For an explanation of Israel’s harmless error statute, see Samuel Flaks, Excusing Harmless Error in Will Execution: The Israeli Experience, 3 Est. Plan. & Community Prop. L.J. 27 (2010).

In 1981 a British Columbia commission produced a report recommending the adoption of a statute “permitting the court to enforce a defectively executed will if satisfied that the will reflects the testator’s intention, but only on condition that the will be in writing and that the testator have signed it.” Thus, the recommendation was limited to permitting the court to address attestation defects. The Uniform Laws Conference of Canada approved a harmless error measure for the Canadian Uniform Wills Act in 1987. Both Manitoba and Saskatchewan have enacted harmless error statutes.

The harmless error doctrine has seen the greatest development and use in several Australian states. The Australian state of South Australia adopted harmless error in 1975, and the doctrine spread to other Australian states. The Australian experience proved influential in the adoption of harmless error in the United States after Professor John Langbein studied the doctrine in Australia and advocated its adoption in the United States.

For information about harmless error in Australia, see David Horton, Partial Harmless Error for Wills: Evidence from California, 103 Iowa L. Rev. 2027, 2037-42 (2018); John H. Langbein, Absorbing South Australia’s Wills Act Dispensing Power in the United States: Emulation, Resistance, Expansion, 38 Adel. L. Rev. 1 (2017); John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law, 87 Colum L. Rev. 1 (1987).

US Cases Applying the Harmless Error Doctrine

A handful of reported cases provide some examples of when harmless error has been applied successfully—and when the attempt to admit the document as a will has failed. In the states with harmless error statutes, practitioners should be aware of the types of situations in which the doctrine may be used.

California

In Estate of Ben-Ali, the purported will had signatures of the decedent and two witnesses, but the signature of one witness was illegible and the identity of the witness could not be determined. The court ruled that because no evidence supported a finding that the entry on the signature line was a signature of a witness, the proponent of the document had not established due execution of the will. The court turned to California’s harmless error statute and the rule that the court must find by clear and convincing evidence that the decedent intended the document to be the decedent’s will. The court found conflicting evidence of the provenance of the document, whether the decedent had, in fact, signed it, and whether the decedent had intended the document to be his will. The court concluded that no reasonable fact finder could conclude that the will represented the decedent’s testamentary intent. Estate of Ben-Ali, 157 Cal. Rptr. 3d 353, 361 (Cal. Ct. App. 2013).

In Estate of Stoker, a handwritten will created in 2005 did not meet California’s will formalities because it lacked the signatures of two witnesses. The 2005 will was held to be valid over a 1997 will that did meet the formal requirements of the California Probate Code. The main difference between the two wills was the removal of the appointment of the testator’s prior girlfriend as executor of the estate. The court found clear and convincing evidence that the testator intended the 2005 will to be his final will because of his destruction of his previous will, his signature on the 2005 document, his prior discussion with friends that the document was his will, and the testimony of two friends that they saw him sign the document.

Estate of Stoker also discussed the retroactivity of California’s harmless error statute, which was enacted in 2009. The court noted that before 2009 the 2005 will could not have been probated, but that the testator did properly revoke his 1997 will regardless of the new statute. The 2009 statute applied to the 2005 will only because of the revocation of the 1997 will. The 2005 document was the decedent’s only will at the time of his death due to the revocation of the 1997 will. The court felt it was appropriate to apply the harmless error rule to the 2005 will because that will was the only will available. Estate of Stoker, 122 Cal. Rptr. 3d 529, 534 (Cal. Ct. App. 2011).

Colorado

At a dinner party with two friends, Ronald Wiltfong gave his domestic partner of more than 20 years, Randell Rex, a birthday card with a typed, signed note that said that if anything happened to Wiltfong he wanted all his property to go to Rex. Wiltfong died a year later, and Rex attempted to probate the letter as Wiltfong’s will. Wiltfong had signed the letter, but the trial court erroneously thought he also needed to acknowledge the document as his will. The Court of Appeals said the statute required either a signature or acknowledgment, so the signature was sufficient. The court remanded the case for the critical step: a determination of whether Wiltfong intended the document to be his will.

The Court of Appeals commented that harmless error in Colorado is limited to minor flaws in execution. The court explained that Colo. § 15-11-503(2) “establishes the condition precedent that a document be ‘signed or acknowledged by the decedent as his or her will’ before a court may move to the next step and decide whether there is clear and convincing evidence the decedent intended the document to be a will.” In re Estate of Wiltfong, 148 P.3d 465, 468 (Colo. App. 2006).

The court, citing the Restatement, commented further:

Thus, the question is whether a defect is harmless in light of the statutory purposes, not in light of the satisfaction of each statutory formality, viewed in isolation. To achieve those purposes, the issue is whether the evidence of the conduct proves the decedent intended the document to be a will.

Id.

The court distinguished an earlier Colorado case, In re Estate of Sky Dancer, in which the court had refused to use harmless error to probate a document as a will. The court explained:

Here, the letter and the circumstances surrounding it are manifestly distinguishable from the document the division invalidated in In re Estate of Sky Dancer, [13 P.3d 1231 (Colo. App. 2000)]. The purported will discussed in that opinion was flawed by more than technical drafting mistakes. For example, information produced in a police investigation suggested the proponent of the document may have been involved in causing the decedent’s death. The dispositive portion of the document was neither signed by the decedent nor written in her hand. There was no evidence the decedent told anyone the document was to serve as her will. Last, the division indicated there was a possibility another person had created the dispositive portions of the document.

In re Estate of Wiltfong, 148 P.3d 465, 469–70 (Colo. App. 2006).

The court explained that in determining Wiltfong’s intent, the court could consider extrinsic evidence such as the decedent’s statements to others about the letter. The court could also consider the language of the letter, including whether the letter disposed of all the decedent’s property and whether it identified a beneficiary.

Michigan

Shortly before his death by suicide, Duane Horton handwrote a journal entry stating that a document titled “Last Note” was on his phone. The journal entry provided instructions for accessing the note, and he left the journal and phone in his room. The Last Note included apologies and personal comments relating to his suicide as well as directions relating to his property. Mr. Horton typed his name at the end of the document. After considering the text of the document and the circumstances surrounding Mr. Horton’s death, the court concluded that the note evidenced his testamentary intent as to the disposition of his property. The court permitted the probate of the Last Note under Michigan’s harmless error statute. In re Estate of Horton, 925 N.W. 2d 207 (2018).

Horton reflects the difficulties posed by electronic documents that individuals intend to be dispositive documents. One case, In re Estate of Javier Castro, Case No. 2013ES00140, Court of Common Pleas Probate Division, Lorain County, Ohio (June 19, 2013), examined whether electronic writing—a will written with a stylus on an electronic tablet—is “writing” for purposes of the execution formalities. Castro concluded that it was. In that case the testator and two witnesses had signed the tablet using the stylus, so the execution formalities had been met as long as the electronic writing counted as writing.

In In re Estate of Attia the only issue on appeal was whether the signature of the decedent was a requirement before a will could be admitted to probate under the harmless error statute. The court held that a signature was not necessary, and it remanded the case for further deliberation. The document in the case was a draft will prepared by a lawyer but unsigned when the decedent died. The court provided no guidance as to factors that should be considered on remand. In re Estate of Attia, 895 N.W.2d 564, 568 (Mich. Ct. App. 2016).

Montana

Jim Hall and Betty Lou Hall had a joint will prepared by their lawyer. The lawyer mailed them a draft, and after reviewing it they met with the lawyer to make some changes. The lawyer agreed to prepare a final version of the will. Before they left the lawyer’s office, Jim asked if they could sign the draft (with changes noted on it) and have that document stand as their will until the lawyer sent the final version. The lawyer said they could, and Jim and Betty signed the joint will. The lawyer notarized it, but no one else was in the office, so no one attested the will as a witness. When Jim and Betty got home, Jim directed Betty to tear up his prior will. Although Jim lived more than a year after they signed the draft, the final version was never signed.

After Jim’s death, Betty Lou requested probate of the will, and the district court admitted the will under the harmless error statute. Jim’s children from a prior marriage contested its admission to probate. The Court of Appeals described the facts surrounding the execution, including the revocation, and stated, “The only question before this Court, therefore, is whether the District Court erred in concluding that Jim intended the Joint Will to be his will under § 72-2-523, MCA. We conclude that the court did not err.” In re Estate of Hall, 51 P.3d 1134, 1136 (Mont. 2002).

New Jersey

Two months after Richard Ehrlich died, a document titled “Last Will and Testament” was found in his house. It was typed on traditional legal paper with Richard Ehrlich’s name and law office address printed in the margin of each page. The document lacked a signature but did include notations in the decedent’s handwriting in the margins. The document had been created on May 20, 2000, shortly before Ehrlich underwent surgery. Later in life, Ehrlich referred to a will he had created when he discussed making changes to it. The court admitted the document as Ehrlich’s will, stating that “the trend toward excusing harmless errors is based on a growing acceptance of the broader principle that mistake, whether in execution or expression, should not be allowed to defeat intention nor to work unjust enrichment.” In re Estate of Ehrlich, 47 A.3d 12, 23 (N.J. Super. Ct. App. Div. 2012).

In New Jersey, the harmless error statute requires evidence that the decedent actually reviewed the document in question and thereafter gave the decedent’s final assent to it. Ehrlich, a lawyer, had prepared the document. A handwritten notation at the top of the first page included a date and a comment that he had mailed the original copy to his executor. In the opinion of the court, this evidence was enough to satisfy the requirement that the testator gave his final assent and considered the document his will. The court did not comment on the fact that a lawyer should have known that the will was not valid without attestation. A strongly worded dissent argued that a document without the decedent’s signature should not be admitted to probate as a will.

A bill was introduced in 2018 with the goal of overturning the result in Ehrlich. Assembly Bill No. 1176 proposed adding the following requirement to New Jersey’s harmless error statute: “the document or writing is signed by the testator or is substantially in the testator’s handwriting . . . .” The legislature did not enact the bill. 2018 N.J.A.B. 1176 and Statement.

In Macool, Louise Macool visited her lawyer with notes of what she wanted included in a new will. The lawyer dictated the will while she was in his office, and she left. The will was typed later that day or the next morning, but because Macool died an hour after leaving the lawyer’s office, she never saw the typed document. The court, in holding that the proponent of the unsigned document had not met the clear-and-convincing burden, said, “The proponent of the writing intended to constitute such a will must prove, by clear and convincing evidence, that: (1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it. In re Prob. of Will & Codicil of Macool, 3 A.3d 1258, 1265 (App. Div. 2010).

The court noted that this ruling disposed of the case, but “in the interest of completeness” went on to overrule the trial court’s ruling that the lack of signature disqualified the document as a will. The court opined that the statute did not require the testator’s signature. Id. at 1265–66.

Ohio

In re Estate of Shaffer involved a writing signed by the decedent in the presence of two people who saw him write and sign the document but who did not sign it themselves. Before going to the hospital, Shaffer asked for a piece of paper. He wrote “My estate is not completely settled” and then made some dispositive statements. He wrote the date on the paper and signed his full name. Although the trial court refused to admit the paper as a will, the Court of Appeals reversed. The court found clear and convincing evidence that the decedent intended the paper to be his will. Two people had observed him write the statement on the paper and sign the paper, so the formalities required under Ohio law for application of harmless error were met. In re Estate of Shaffer, 2019 WL 337011 (2019).

In In re Estate of Hand, the court refused to probate a document the decedent had written. After Eric Anthony Hand died, his surviving spouse asked the court to recognize as his will a “love letter” Hand had written to her. The final paragraph of the letter began, “[a]s my last will and testament . . . .” and the paragraph then provided directions for the distribution of Hand’s property. Hand had signed the letter with a formal signature, unlike other love letters he had written to his spouse. The surviving spouse also found a printed document titled “The Last Will and Testament of Eric Hand,” which had not been signed. The document had been prepared using LegalZoom software the day before Hand wrote the love letter.

The trial court concluded that clear and convincing evidence did not exist to prove that Hand intended the love letter to be his will. The evidence that he had used LegalZoom to prepare a will at about the same time he had written the love letter undercut the argument that the love letter will represented his final wishes and should be treated as a valid will. The court did not review the case de novo and affirmed the trial court’s decision that the decedent did not intend the love letter to be his will. In re Estate of Hand, 73 N.E. 3d 880, 884 (Ohio Ct. App. 2016).

Oregon

Shortly after her spouse’s death Marilyn Boysen handwrote a document in the presence of her grandchild and the grandchild’s spouse, put the document in an envelope, and gave the envelope to the grandchild to hold until Boysen died. The document began with a statement that her spouse had died five days earlier. The writing then said, “In the event of my death, Marilyn Boysen, I leave my worldly possessions…” and described her dispositive wishes for her property. She signed and dated the writing.

The trial court refused to admit the document to probate as a will. The court appeared to rely on evidence of statements and actions by Boysen after the date of the document that were inconsistent with the gifts made in the document. The Court of Appeals explained that when determining a decedent’s intent with respect to a will and when determining whether a decedent intended a document to serve as a will, the court must consider the decedent’s intent at the time of execution of the document. The court remanded the case for the court to evaluate the facts as of the time Boysen created the writing. Matter of Estate of Boysen, 297 Or. App. 21 (2019).

Recent Cases from Australia

In recent years, courts in some states in Australia have moved beyond the more limited application of the harmless error doctrine to give effect to an “unsent text” and a videotape of a decedent’s wishes. The Australian statutes require a “document” rather than a “writing,” which the UPC requires. The Acts Interpretation Act § 36 defines “document” to include: “any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).” Other cases had determined that the statute covers both electronic writing and video recordings, so the cases described here turned on whether the decedent intended the document to represent the decedent’s final wishes with respect to distribution of property.

Daniel Yazbek committed suicide and shortly thereafter an investigator found a document titled “Will” on his laptop computer. The court concluded that the Word document was a document for purposes of the statute, that the document stated his testamentary intentions, and that Daniel intended the document to be his will. Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594 [New South Wales Supreme Court].

Before he committed suicide, Karter Yu wrote several documents on his iPhone. One began, “This is the Last Will and Testament” and it named an executor and provided instructions for Yu’s property. The court determined (1) that the iPhone document was a document for purposes of the statute, (2) that the document set forth Yu’s testamentary wishes, and (3) that Yu intended the document to be his will. The court admitted the document to probate. In re Yu [2013] QSC 322 [Queensland Supreme Court].

Mark Nichol left an unsent text message on his phone before committing suicide. The phone was found next to his body. The text read as follows:

Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636

MRN190162Q [Mark Nichol’s initials and birthdate]

10/10/2016

My will

The words “My will” had a paperclip symbol on one side and a smiley face on the other. The text was addressed to the decedent’s brother, David Nichol, whose entry in the phone was “Dave Nic.”

The court reviewed evidence of the decedent’s relationships with people named in the text and with other family members. The court also considered the decedent’s behavior in the months before his death, his conversations concerning his property, and the text itself—the wording and where it was found. The court found the evidence sufficient to determine that the decedent intended the text to be his will. Re Nichol; Nichol v Nichol & Anor [2017] QSC 220.

Jay Schwer made a video recording at the request of his girlfriend before he picked up a motorcycle. That same day he suffered a serious head injury while riding the motorcycle. He lived several years after the accident but did not prepare a formal will before his death. The court considered the video recording a “document,” so the issue the court addressed was whether the decedent intended the document to be his will. The court said:

[18] When the question is whether an informal statement of testamentary intention is intended to operate as a will, other considerations may intrude. For example, the document may be a note or record of a person’s testamentary intentions, in the sense that it records what they then intend will be put in a will to be made, but the document itself is not intended to operate as the will. That is why draft formal wills prepared for a person to execute do not qualify as an informal will.

[19] A number of cases have considered whether an informal document, prepared as a stop gap, can operate as a will. [citations omitted] In the present case, in my view, there is no significant difficulty. First, at the time of making the video recording, Mr. Schwer clearly intended that it was to operate in the event of his death, possibly in the near future from riding his motorcycle. Second, that he stated that he intended to “fill out the damn forms” at some time in the future did not displace his intention that the video recording was to operate as his will in the meantime. Third, the delay in Mr. Schwer attending to “fill out the damn forms” subsequently is readily explained by his head injury suffered in the motorcycle accident and associated loss of memory of the day on which he made the video recording.

The court concluded that Schwer did intend the video recording to serve as his will and therefore allowed it to be probated. Radford v White [2018] QSC 306 (17 December 2018).

About four years before his death, Leslie Quinn made a video recording on his iPhone. He showed it to his wife and told her that it was his will. When he died, his wife could not access his iPhone because it was password-protected, but she found a copy of the video recording on his computer. She had a transcript of the video recording produced and asked the court to admit the recording as his will. Other courts had already held that a DVD and a document written on an iPhone met the definition of a document, so the court relied on the earlier cases to conclude that the video recording was a document. The court then turned to the issue of whether the decedent intended the video recording to be his will. The court concluded, based on the evidence, that he did. In the Estate of Leslie Wayne Quinn (deceased) [2019] QSC 99 (17 April 2019).

Conclusion

This review of the statutes, the Restatement, and the existing cases involving harmless error leads to a few general conclusions. First, in the United States a writing is required, and a video recording cannot serve as a will. Second, a hierarchy of defects exists. Courts are more likely to fix problems with attestation than the lack of the testator’s signature. If the testator’s signature is missing, the court will look carefully at whether the testator intended the document to be the testator’s will at a specific moment, usually when created. If two testators mistakenly sign each other’s wills, a court is likely to use harmless error to validate each will, but in other cases the testator’s missing signature is difficult to excuse. And in four of the states with harmless error statutes the testator’s signature is required. Third, in applying a harmless error statute, a court will focus on the intent of the testator that the document be the testator’s will. The intent is related to the document itself, not the testator’s generally expressed testamentary wishes.

A minority of US jurisdictions have adopted the harmless error doctrine, but more states may want to consider the benefits the doctrine provides. The advantage of adopting a harmless error statute rather than relaxing execution requirements directly or authorizing holographic wills is that a court will oversee the determination of whether a document should be admitted to probate as a will. The harmless error rule permits the court to fix a number of the problems that occur with will execution, but because the proponent must produce clear and convincing evidence, adoption of the rule should not lead to a significant number of additional hearings. Most wills, codicils, and documents of revocation will still be admitted to probate based on compliance with the statutory execution requirements. These requirements will remain as a safe harbor, and any lawyer assisting a client with a will should follow those requirements when the client executes the will. When a problem with execution occurs, often because someone tries to execute a will without the assistance of a lawyer, a court can consider the evidence surrounding the document. If the evidence establishes the decedent’s intent that the document serve as the decedent’s will, the court can honor that intent.

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By Susan N. Gary

Susan N. Gary is an Orlando J. and Marian H. Hollis Professor of Law at the University of Oregon in Eugene, Oregon. She is a former member of Council for the RPTE Section.