Decoupling the Law of Will-Execution

Mark Glover

University of Wyoming College of Law

October 17, 2013

88 St. John's Law Review 597 (2014)

The law of will-execution includes two related but distinct components. The first is formality, including the requirements that a will be written, signed, and witnessed. The second is the standard that courts use to evaluate compliance with these formalities. Courts traditionally apply a rule of strict compliance, under which any formal defect invalidates the will. Fueled by longtime criticism of this rule, an ongoing reform movement seeks to relax the law’s insistence on strict compliance. However, despite broad support within the legal academy, this reform effort has been slow to instigate change.

This Article argues that the reform movement’s struggles can be explained in part by the way that scholars evaluate the need for reform. When analyzing this area of law, they typically ask two questions: (1) What are the functions of will formalities? and (2) How can the law be changed so that these functions are better served? By focusing on formality’s purpose, the reform movement overlooks the purpose of strict compliance, and it therefore fails to clearly identify the costs and benefits of reform.

Just as will formalities serve specific functions, the rule of strict compliance also serves various functions. The loss of these functions is a potential cost of reform that the reform movement disregards when it focuses on formality. This Article therefore illuminates the utility of reform by clearly identifying the functions of strict compliance and by analyzing whether these functions justify the rule’s place in the law of wills. This analysis clarifies the costs and benefits of reform and ultimately refines the argument in favor of change.

Number of Pages in PDF File: 56

Keywords: Trusts & Estates, Wills, Formalities, Strict Compliance, Functional Analysis

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Date posted: October 20, 2013 ; Last revised: May 21, 2015

Suggested Citation

Glover, Mark, Decoupling the Law of Will-Execution (October 17, 2013). 88 St. John's Law Review 597 (2014). Available at SSRN: https://ssrn.com/abstract=2341748 or http://dx.doi.org/10.2139/ssrn.2341748

Contact Information

Mark Glover (Contact Author)
University of Wyoming College of Law ( email )
P.O. Box 3035
Laramie, WY 82071
United States
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