Wills Act Formalities: Modern Trend

The Wills Act formalities are strict, frequently frustrating the intent of the testator rather than fulfilling it. In courts that require strict compliance, even the smallest error or ambiguity could invalidate the entire will, frequently causing property to be distributed according to the state's intestate distribution scheme. Hence, the courts have developed a number of approaches that allow reformation of the will so that the testator's intent can be carried out even if there are problems with the will. These approaches have been codified in the American Law Institute's Restatement (Third) of Property: Wills and Other Donative Transfers.

Using clear and convincing evidence, mistaken terms, scrivener errors, ambiguities, and other flaws in the will could be corrected by the courts. However, courts will not usually consider what the decedent had said, but not written, while still alive, and wills that were not signed will rarely be considered valid, since there is always the possibility that the testator drafted the will, but then decided against signing it.

The main reasons allowing the court to reform the will is to carry out the intent of the testator, to prevent the unjust enrichment of the distributee at the expense of the intended beneficiary, and to lower or prevent malpractice liability if the error was caused by the attorney. Even the smallest mistakes in a will that could not be reformed could result in a substantial liability to the attorney drafting the will.

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Many have argued that strict compliance was necessary to avoid additional litigation and other problems, but the experience in other countries, especially in Canada, Australia, and Israel, and with nonprobate transfers has demonstrated that allowing will reformation may even reduce litigation, since much of that litigation was based on minor errors in the will that could be contested to unjustly enrich contesters and attorneys.

Will Reformation Doctrines

Since many types of flaws are common in wills, the courts have developed a few doctrines to address specific types of flaws.

The misdescription doctrine is a legal method in which words are struck—but not added—to see if a will can be made intelligible so that it can be validated and admitted to probate. When a few words do not make sense in the context of the will, the court tries to determine the testator's intent by hearing evidence for the intended meaning of the misdescription, then strikes the words to see if there are enough words to determine the testator's intent.

Sometimes, a will contains scrivener's errors, which are mistakes in the writing of the will which changes its meaning, such as typographical errors, such as a mistaken address, or the inadvertent omission or addition of words. Or, in the cases of scrivener fraud, the drafting lawyer or some other person has the testator sign a document that is not the testator's will. The remedy for scrivener's error or fraud is the creation of a constructive trust that will receive the property and distribute it according the testator's intent.

In New Jersey, the courts have applied a doctrine of probable intent to rectify a will where there was an ambiguity as to whether the mortgage and taxes of a devised house were to be paid by the estate. Relying upon a letter sent by the decedent to his lawyer and examining the details of the will, the New Jersey Supreme Court ruled that the testamentary intent was to have the mortgage and real estate taxes paid by the estate, since this would have best cohered with everything else in the will and the letter. [Estate of Theodore M. Payne, 186 N.J. 324, 895 A.2d 428 (April 20, 2005)]

Many jurisdictions will admit a document into probate if it is in substantial compliance with the Wills Act formalities. To satisfy the substantial compliance standard:

  1. there must be clear and convincing evidence that the testator intended the document to be his last will and testament
  2. and that the will substantially complies with the Wills Act formalities.

The harmless error doctrine gives the courts even more leeway to change a will by only requiring that the testator intended the document to be his last will and testament. It does not require that the document be in substantial compliance with the Wills Act formalities. This is also called the dispensing power because it allows the courts to dispense with the strict Wills Act formalities as long as there is clear and convincing evidence for the remedy. (Dispensation also means to relax the law for the benefit of the individual.)

The harmless error approach is applied mainly when there is a problem with the attestation by witnesses. Indeed, Pennsylvania has not ever required that a will, even a non-holographic will, be witnessed, and testamentary transfers seem to work pretty well there, anyway. However, the harmless error approach is rarely applied to the writing since it may require more speculation by the court as to what the testator intended. The signature is also required to prevent fraud, but the will may be validated by the harmless error approach if the position of the signature differs from the Wills Act requirements.

Most states today still require strict compliance with the Wills Act formalities, but the Uniform Probate Code and the Restatement (Third) of Property, Donative Transfers adopts the harmless error approach. Critics have argued that the harmless error doctrine increases the cost of probate since it is fact-sensitive, but it is more likely to distribute the probate property according to the testator's intent.

Statutory Wills

These are wills provided by some state governments in their code that can be used by people with small estates.