Formal Execution and Informal Revocation Will Requirements Protect the Family
Below is an excerpt from the introduction to the article:
Legal scholars have argued that many probate doctrines, including will formalities, undue influence, and mental capacity, provide courts the opportunity to invalidate wills that make disfavored bequests. Specifically, scholars argue that courts use these doctrines to invalidate testamentary gifts to nonfamily members: overlooking faulty execution of wills leaving the decedent’s estate to the family while strictly applying these doctrines in cases involving gifts to radical political organizations, homosexual partners, unmarried cohabitants, and other equally disfavored beneficiaries. This view of will formalities fits nicely with probate’s firmly established family-protection policy, which is evident in a number of probate doctrines that explicitly protect familial interests, such as the elective spousal share, statutes protecting pretermitted heirs, and the distributive scheme of intestacy.
This article proceeds in five parts. Part I briefly describes the historical and modern manifestations of probate’s family-protection policy. Part II explains the will-execution process and the place of formal requirements in that process. Part III argues that a formal will-execution process promotes probate’s family-protection policy. Part IV shifts the focus of the article from execution to revocation and describes the process by which a testator may revoke a will. Finally, Part V argues that, like the formal execution process, the informal revocation process furthers probate’s family-protection policy.