Article on California’s “Harmless Error” Provision for Electronic Wills

Gökalp Y. Gürer recently published an Article entitled, No Paper? No Problem: Ushering in Electronic Wills Through California’s “Harmless Error” Provision, 49 U.C. Davis L. Rev. 1955 (2016). Provided below is a summary of the Article:

Currently, Nevada is the only state15 to have passed an electronic wills statute. In California and the forty-eight other states (with laws varying somewhat state-to-state), as a general rule all wills must be on paper, either typed (and printed) or handwritten. But as mentioned earlier, California’s probate code includes a harmless error provision that focuses on testamentary intent and not strict adherence to formalities. Thus, if one can represent their intentions via an electronic will just as clearly as they can with a paper will, then perhaps harmless error could be utilized as an entrance for electronic wills without waiting for the California Legislature to pass a separate statute like Nevada has done. This exciting possibility exists because even though California’s harmless error provision is directed to paper wills, an alternative reading of the statute in conjunction with case law opens the door to permit electronic wills. This Note embraces this opportunity.

Part I explores the origin of the modern will’s formal requirements by tracing its evolution through the Statute of Wills of 1540, Statute of Frauds of 1677, and Wills Act of 1837. Fleshing out this timeline illustrates just how slowly wills law develops, and thus how much effort is needed to advance it. Part II provides a detailed description of the current state of wills law in California, highlighting and explaining the writing, signature, and attestation requirements. Part III explains and analyzes section 2-503 of the Uniform Probate Code (the “Uniform Harmless Error Provision”) and section 6110(c)(2) of the California Probate Code (“California’s Harmless Error Provision”), highlighting how harmless error functions. Part IV provides the solution to California’s lack of an electronic wills statute. This section presents a three-fold argument: (1) electronic wills satisfy California’s writing and signature requirements; (2) California’s harmless error provision can be interpreted to include electronic wills; and (3) public policy supports harmless error’s inclusion of electronic wills. This Note concludes by suggesting that the time is ripe for California to take an innovative leap forward in wills law to an era where electronic wills stand side-by-side with paper wills.