Wills Act Compliance and the Harmless Error Approach: Flawed Narrative Equals Flawed Analysis?

Abstract

What degree of compliance with the Wills Act formalities should the courts require when analyzing whether a will has been properly executed? The conventional wisdom is that historically courts have insisted on absolute strict compliance, favoring formalities over testamentary intent. In 1975, Prof. John Langbein argued that substantial compliance with the Wills Act formalities should suffice. A little over a decade later, he modified his proposal, arguing for a harmless error approach.

Prof. Langbein’s proposals have been well received. Many academics have endorsed them. The Uniform Probate Code and the Restatement (Third) of Property have adopted his harmless error approach. Yet relatively few states have adopted either proposal. If Prof. Langbein’s substantial compliance/harmless error proposals are so much better than strict compliance, what explains the failure of most jurisdictions to adopt either of them?

This Article argues that (1) many of the states intuitively realize that the issue is not as simple as Prof. Langbein depicts it – that ‘strict compliance’ is neither as monolithic nor as strict as he portrays it; (2) most jurisdictions, in fact, do not apply the strict compliance approach he describes but rather a variation of it – flexible strict compliance; and (3) the real issue is not whether substantial compliance/harmless error is better than traditional strict compliance, but whether substantial compliance/harmless error is better than flexible strict compliance – and the answer to that question is far from obvious. Flexible strict compliance adopts a more pragmatic approach to the public policy considerations underlying the Wills Act formalities, eschewing the functional approach and instead favoring an approach that balances testator’s intent with costs of administration and the potential for fraud, resulting in an approach that is more efficient than either substantial compliance or harmless error.

Keywords: Wills Act, Valid Will, John Langbein, Harmless Error Approach, Substantial Compliance Approach, Strict Compliance, Flexible Strict Compliance