An Argument for Adopting the Harmless Error Rule for Non-Compliant Wills

Stephanie Lester (J.D. Candidate 2008, New York University School of Law) has recently published her article entitled Admitting Defective Wills to Probate, Twenty Years Later: New Evidence for the Adoption of the Harmless Error Rule, 42 Real Prop. Prob. & Tr. J. 577 (2007).

Here is the editors’ synopsis of her article:

This article examines how strict adherence to Wills Act formalities can frustrate testator intent and lead to ad hoc judicial results when more lenient judges attempt to effectuate such intent despite noncompliance with these formalities. In advocating that United States jurisdictions should embrace the harmless error rule as an effective reform in the area of noncompliance with Wills Act formalities, the author re-examines Professor John Langbein’s 1987 Australian research on the effectiveness of the application of this doctrine. The author has performed empirical research in the Australian court systems to update the literature from Langbein’s earlier study and to examine how the application of the harmless error rule has fared in Australia over the last 20 years. After reviewing the relatively few instances of use of the harmless error rule in the United States, the author concludes that based on the success of the Australian model, United States jurisdictions should fully adopt this doctrine in the probate of noncompliant wills.