Wills Formalities in the Twenty-First Century

26 Pages Posted: 3 Nov 2018 Last revised: 26 Apr 2019

Date Written: September 30, 2018


Individuals have executed wills the same way for centuries. But over time, traditional traditional requirements have relaxed. This Article makes two principal claims, both of which disrupt fundamental assumptions about the purposes and functions of wills formalities. First, the traditional requirements that a will must be in writing and signed by the testator in the presence of (or acknowledged before) witnesses have never adequately served the stated their stated purposes. For that reason, strict compliance with formalities cannot be justified by their cautionary, protective, evidentiary and channeling functions. Reducing or eliminating most of the long-standing requirements for execution of a will is consistent with the true purpose of wills formalities – authenticating a document as the one executed by the testator with the intention of having it serve as the binding directive for the post-mortem distribution of the testator’s property.

This Article’s account has important implications for the way that legal scholars, lawmakers and lawyers think about wills. The Article’s second claim is that the substantive standard of the harmless error rule – that the decedent intended a particular document to be the decedent’s last will and testament – should be the only threshold that must be satisfied for a court to admit the document to probate. Widespread adoption of such an intent-based rule is preferable to one that is overly formalistic. Current formalism leads both to false positives (i.e., grant of probate to a document not intended by the decedent as the decedent’s will) and false negatives (i.e., denial of probate of document clearly intended by the decedent as the decedent’s will). An intent-based rule would make more likely the valid execution of wills by poor and middle-income people who typically cannot or do not consult attorneys. An intent-based standard also sets the stage for widespread recognition of electronic wills, if states are able to address concerns about authentication, fraud and safekeeping of electronic documents. Technological developments could make estate planning in the twenty-first century more accessible than ever before to people of all wealth and income levels if the legal profession is prepared to embrace new ways of executing wills.

Keywords: Wills, Formalities, Witnesses, Class, Socioeconomics, Execution, Testament, Technology, Electronic Wills

JEL Classification: K00, K1, K10, K19, K36

Suggested Citation

Crawford, Bridget J., Wills Formalities in the Twenty-First Century (September 30, 2018). 2019 Wisconsin Law Review 269, Available at SSRN: https://ssrn.com/abstract=3264683 or http://dx.doi.org/10.2139/ssrn.3264683

Bridget J. Crawford (Contact Author)

Pace University School of Law ( email )

78 North Broadway
White Plains, NY 10603
United States

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