Will Formalties — Should Noncompliance be Excused?

Matthew D. Owdom has recently published his casenote entitled Post-death Subscription: The Protective Function Reborn, 39 McGeorge L. Rev. 359 (2008).

Here is an excerpt from the introduction to his article:

Many beneficiaries have been unfortunate enough to discover that a testator’s failure to comply with testamentary execution requirements carries a heavy price. In recent decades, many states have taken steps to mitigate the impact of formal attestation requirements on expressions of testamentary intent.  This modern response embodies a liberal attitude towards formalities in the law of wills, indicating that the once-solid foundation of execution requirements is crumbling. Indeed, commentators have opined that attestation formalities may be “withering away,” and some have called for their outright elimination.  Despite these developments, the recent decision by the California Supreme Court in Estate of Saueressig indicates that formalities are far from extinct.

In Saueressig, the court held that California Probate Code section 6110 prohibits the completion of attestation requirements after the death of the testator.  The court’s narrow interpretation of section 6110 constitutes a significant deviation from modern trends in the law of wills. Given the viability of holographic wills and will substitutes in California, all of which undermine the functions of execution formalities, Saueressig appears, upon first glance, to embody a result inconsistent with the prevailing wisdom of the law of wills.

Nevertheless, this Casenote argues that the bright-line rule adopted in Saueressig is superior to the “reasonable time” rule adopted by other jurisdictions and promulgated in the 1990 Uniform Probate Code (UPC). Consistent with the normative conception of formal functions, its primary benefit lies in its protection of the testator from fraud or mistake.  In addition, the Saueressig approach promotes uniformity, predictability, and administrative efficiency.  While Saueressig’s holding is laudable, the court’s reasoning is less than clear, leaving several unresolved questions.

This Casenote contends that Saueressig illustrates three key points. First, from a policy standpoint, the Saueressig rule maximizes the utility of the protective function of attestation formalities following the 1983 reforms to the California Probate Code. Implicit in this point is an assertion that the once-discredited protective function has undergone a legitimizing “rebirth” in the limited context of post-death subscription. Second, although its result is sound, Saueressig embraces the deeply-rooted but erroneous legal proposition that post-death subscription is incompatible with the temporal nature of the will instrument. Finally, Saueressig demonstrates the judicial tendency to interpret modern, minimalist wills acts in a manner inconsistent with the prevailing liberal attitude towards formalities.

Part II begins by surveying the legal background of Saueressig, including the conflicts in the California appellate courts that generated the Saueressig case and the competing rule adopted in other jurisdictions. Part III provides an in-depth look at the Saueressig case. Finally, Part IV analyzes the implications of the rule adopted in Saueressig.