COVID-19 and Formal Wills

73 Stan. L. Rev. Online 18 (2020)

10 Pages Posted: 15 Apr 2020 Last revised: 3 Jun 2020

See all articles by David Horton

David Horton

University of California, Davis - School of Law

Reid K. Weisbord

Rutgers Law School

Date Written: April 9, 2020

Abstract

Most Americans do not have a will. The reasons are easy to understand. Thinking about death is unpleasant, and hiring a lawyer is expensive. However, as COVID-19 sweeps through the country, some Americans urgently need an estate plan.

Unfortunately, U.S. law makes it difficult to create a will during crises like these. Indeed, twenty-five states and the District of Columbia recognize only one type of will: a “formal” will executed in compliance with the Wills Act. Under this ancient statute, wills must be written, signed by the testator, and also witnessed by two people who were present at the same time. As journalists and lawyers are recognizing, the Wills Act’s insistence that the parties physically occupy the same space creates unprecedented roadblocks during a time of widespread quarantine and shelter-in-place orders.

Yet the pandemic has also arrived during a period in which wills law is in flux. In the last two decades, a handful of jurisdictions have begun excusing harmless errors during the will-execution process. And, in an even sharper departure from the Wills Act’s stuffy norms, four states have recently authorized electronic wills.

This Essay argues that COVID-19 vividly highlights the shortcomings of formal wills. Indeed, the outbreak has exposed the main problem with the Wills Act: it makes will-making inaccessible. As a result, we urge lawmakers in states that cling to the statute to liberalize the requirements for creating a will. Our argument proceeds in three Parts. Part I details the social value of will-making. Part II describes the Wills Act and explains why it creates formidable obstacles for testators who are caught in the jaws of a pandemic. Part III explores four ways in which policymakers can solve this problem: by permitting holographic wills, adopting the harmless error doctrine, enacting electronic will legislation, or temporarily suspending certain elements of the Wills Act during public health emergencies.

Keywords: COVID-19, wills, probate, holographic, electronic wills, estate planning

Suggested Citation

Horton, David and Weisbord, Reid K., COVID-19 and Formal Wills (April 9, 2020). 73 Stan. L. Rev. Online 18 (2020), Available at SSRN: https://ssrn.com/abstract=3572097 or http://dx.doi.org/10.2139/ssrn.3572097

David Horton (Contact Author)

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

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

Reid K. Weisbord

Rutgers Law School ( email )

Newark, NJ
United States

HOME PAGE: http://law.rutgers.edu/directory/view/weisbord

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