Let’s start with a quiz. True or False? In medieval England, wills could be made by a nod of the head. In his marvelous romp through the origins and history of “will formalities,” Professor Wendel tells us that the answer to this quiz question is “True.” Only in 1540 did Parliament adopt the Statute of Wills that required wills devising land to be in writing; oral wills could still dispose of chattels. Even then, there were no other required formalities, and only much later, with the English Wills Act of 1837, did Parliament adopt formalities similar to those we’re familiar with today.
All well and good the reader might say, but why ought we pay any attention to this saga? Prof. Wendel wants us to pay attention because of what he describes as a “quiet war” being waged today over how much formality should be required before wills are given effect, a war with two fronts: (1) how many formalities must a will satisfy before given effect, and (2) if a will is unambiguous, may a court reform it? Traditionalists say retain formalities and limit reformations, and the intent-oriented reformers argue for the opposite approach.
The modern effort to relax will formalities began in 1969 with the Uniform Probate Code (UPC). Subsequently, the jurisdictions have adopted significantly different will execution standards, some stricter than the UPC, some less strict, many just different. This may surprise practitioners because the typical procedure varies—in my observation—far less than the statutory requirements might: two witnesses and the testator, all in the presence of one another (usually with a notary present too). The reader will benefit from reviewing the different level of formalities required across the country because most of us are myopically focused on the jurisdictions where we mostly practice.
The next effort was to relax mandatory adherence to the formalities, with Prof. John Langbein, now of Yale Law School, noting that the “law of wills is notorious for its harsh and relentless formalism” in his famous article, “Substantial Compliance with the Wills Act.”1 Eventually, that attack evolved into what we know now as the harmless error rule. Although only 11 states have adopted that provision of the UPC, the harmless error rule’s influence has been greater. For example, the Uniform Law Commission’s new Electronic Wills Act has a harmless error option for a jurisdiction that wants to move in that direction.
Newer still, but nowhere near as widespread as harmless error, is a power in courts to correct the unambiguous will. In 2008, Section 2-805 was added to the UPC, with the title “Reformation to Correct Mistakes.” That provision allows a court to conform a will to a testator’s intent if by clear and convincing evidence the court can ascertain the testator’s intent and that the terms of the will were affected by a mistake of fact or law. Too new to have given rise to much experience, it’s clear that this is a departure from previous law, although with significant safeguards if we believe that courts take seriously the requirement of proof by clear and convincing evidence.
As a matter of autobiography, Prof. Wendel tends towards the traditional, but two California cases have shaken his confidence. In 2009, the California Superior Court decided Estate of Caspary.2 A Jewish refugee to the United States in World War II, Gerard Caspary had no children, was unmarried and lacked close family. He wanted to leave his estate to the Holocaust Museum in Washington, D.C. Unfortunately, between 2005 when he did his own typewritten, not perfectly clear, will leaving the bulk of his estate to the Museum and engaged an attorney who drew up a proper will with that result, and 2008 when he died, Gerard never signed the proper will. Gerard did turn out to have some very distant family. Three of his friends testified that his typewritten will set out his true wishes. The court concluded that under the traditional rule, there was no valid will, but while the case was pending, California adopted the harmless error doctrine, at least in a limited form. The case settled, and the Holocaust Museum received some portion of the estate.
Then along came Estate of Duke,3 which involved the 1984 holographic will of Irving Duke. Irving left one dollar to his brother (and didn’t mention his deceased sister at all) and everything else to his wife Beatrice, but if both Irving and Beatrice died together, then all would be divided between two charities. Not covered was what actually happened, namely Beatrice dying first. She died five years before Irving died, but he didn’t revise his will. What to do? Irving’s deceased sister had descendants who thought they would be worthy recipients in intestacy, and both the trial court and appellate court agreed, but the California Supreme Court reversed. The court found by clear and convincing evidence that the one dollar bequest meant family was to receive nothing and that Irving wanted all of his assets to pass to charity.
Prof. Wendel is troubled by these cases, yet is unwilling to give up his traditionalist inclination and heritage. And, he thinks he’s found a way out of his dilemma: These California cases both involve charity! Perhaps we should allow harmless error and reformation when charity is involved because the law generally gives a preference to charitable gifts, and charity is more sympathetic than private takers.
Whether the reader finds Prof. Wendel’s conclusion convincing—and I suspect few will—the article is an excellent discussion of the debate, the background and the stakes involved.
Endnotes
1. Professor John Langbein, “Substantial Compliance With the Wills Act,” 88 Harv. L. Rev. 489 (1975).
2. Estate of Caspary, unpublished, and best accessed through David Horton, “Partial Harmless Error for Wills: Evidence from California,” 103 Iowa L. Rev. 2027 (2018).
3. Estate of Duke, 352 P.3d 863 (Cal. 2017).