Article on Wills Act Compliance

Peter T. Wendel recently published an Article entitled, Wills Act Compliance—Strict Compliance vs. Substantial Compliance/Harmless Error: Flawed Narrative = Flawed Analysis?, 31 Probate & Property 22 (May/June 2017). Provided below is an abstract of the Article:

One of the more heated issues in the field of wills, trusts, and estates is what degree of compliance the courts should insist on when applying a state’s Wills Act formalities to a document and analyzing whether the document has been properly executed. The prevailing narrative is that there are only two options. In one corner is the traditional strict compliance approach: an old and tired combatant, but one that keeps hanging in there and can still put up a good fight. Strict compliance focuses on the formalities, insisting on absolute strict compliance with the Wills Act requirements, such that any defect, any failing in the execution ceremony, always and absolutely invalidates the instrument, thereby frustrating the decedent’s intent. In the other corner are Prof. Langbein’s substantial compliance/harmless error proposals: the young, up-and-coming combatant, who slowly but surely is winning bouts and many argue is the heir apparent to the crown. The substantial compliance/harmless error proposals focus on intent. So long as there is clear and convincing evidence that the decedent intended the document to be his will, the court should overlook any failings in the execution ceremony in the interest of promoting testamentary intent. The lines have been drawn, the states must decide: should they promote testamentary intent or the Wills Act formalities? Phrased that way, it seems like a rather simple choice. With apologies to Eddie Izzard, it is a bit like asking which you prefer: “cake or death?”

The problem is, the narrative is flawed and has been from the start. There has always been a third option: a formality-based, court-created, flexible strict compliance approach.