Partial Harmless Error for Wills: Evidence from California

Abstract

In many legal systems, the Wills Act requires testators to memorialize their wishes in a signed and witnessed writing. For centuries, courts insisted on strict compliance with these fussy statutory requirements. But in 1975, South Australia adopted the harmless error rule, which permits judges to forgive execution defects if there is compelling evidence that a decedent intended a document to be effective. Although several countries have now embraced this powerful curative doctrine, most American states have not. This root of this resistance is fear that replacing the clean lines of traditional law with a muddy standard will breed litigation.

This invited contribution to the Iowa Law Review’s Wealth Transfer Law in Comparative and International Perspective Symposium updates our understanding of the harmless error rule by offering the first study of its impact on the day-to-day operations of a U.S. probate court. Its centerpiece is a dataset of 2,453 estates that came on calendar in Alameda County, California between 2008 and 2010. The Golden State adopted what I call “partial” harmless error — a statute that can cure some deviations from the Wills Act but not others — in 2009. Thus, my research offers new insight into the costs and benefits of relaxing the formalities that govern the execution of wills. My marquee finding is that partial harmless error’s impact on the litigation rate was minimal. In addition, I show that by retaining certain statutory elements as mandatory, partial harmless error prevents migraine-inducing dilemmas about whether a decedent wanted an instrument to be her will.

Keywords: Wills Act, harmless error, empirical, Langbein, South Australia, formalism, functionalism, California Probate Code 6110(c)(2), substantial compliance, testator, decedent