Wills Law on the Ground

67 Pages Posted: 1 Nov 2014 Last revised: 6 Dec 2014

See all articles by David Horton

David Horton

University of California, Davis - School of Law

Date Written: November 1, 2014


Traditional wills doctrine was notorious for its formalism. Courts insisted that testators strictly comply with the Wills Act and refused to consider extrinsic evidence to construe instruments. However, the 1990 Uniform Probate Code revisions and the Restatement (Third) of Property: Wills and Donative Transfers replaced these venerable bright-line rules with fact-sensitive standards in an effort to foster individualized justice. Although some judges, scholars, and lawmakers welcomed this seismic shift, others objected that inflexible principles provide clarity and deter litigation. But with little hard evidence about the operation of probate court, the frequency of disputes, and decedents’ preferences, these factions have battled to a stalemate. This Article casts fresh light on this debate by reporting the results of a study of every probate matter stemming from deaths during the course of a year in a major California county. This original dataset of 571 estates reveals how wills law plays out on the ground. The Article uses these insights to analyze the issues that divide the formalists and the functionalists, such as the requirement that wills be witnessed, holographic wills, the harmless error rule, ademption by extinction, and anti-lapse.

Keywords: Uniform Probate Code, UPC, Restatement (Third) of Property: Wills and Donative Transfers, probate, empirical, testator, wills, harmless error, holographic wills, ademption, anti-lapse

Suggested Citation

Horton, David, Wills Law on the Ground (November 1, 2014). UCLA Law Review, Vol. 62, 2015 Forthcoming; UC Davis Legal Studies Research Paper No. 404. Available at SSRN: https://ssrn.com/abstract=2517954

David Horton (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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