Revoking Wills

54 Pages Posted: 17 Mar 2021

See all articles by David Horton

David Horton

University of California, Davis - School of Law

Date Written: March 15, 2021

Abstract

No issue in inheritance law has sparked as much debate as the requirements for making a valid will. For centuries, Anglo-American courts have insisted that decedents obey rigid formalities, such as signing or acknowledging their wills before two witnesses. These rituals preserve proof of the testator’s wishes, reinforce the gravity of estate planning, prevent fraud and duress, and distinguish wills from other instruments. But they also have a dark side. In scores of cases, judges have cited minor errors during the execution process to invalidate documents that a decedent intended to be effective. Accordingly, generations of scholars have critiqued will creation doctrine. Recently, these discussions have intensified, as several jurisdictions have embraced the harmless error rule, which excuses trivial departures from the execution formalities, or adopted statutes that validate electronic wills.

However, the well-canvased topic of creating a will has a little-noticed flip side. Testators do not merely need to follow formalities to make a will; rather, they also must jump through hoops to un-make a will. Since the British Parliament passed the Statute of Frauds in 1677, there have only been two ways to annul a testamentary instrument: by burning, tearing, canceling, or obliterating the document or by signing another will. In sharp contrast to the extensive commentary on executing wills, revocation doctrine has never received sustained attention.

This Article fills that vacuum. First, it reveals that the revocation formalities defeat testamentary intent far more often than is commonly believed. Indeed, testators fail to achieve their goals when they destroy a photocopy, deface the margins of their will, leave the room while a third party revokes the instrument, or express their wishes in a writing that is not a full-fledged will. Thus, even more than the execution formalities, revocation doctrine consists of tripwires and traps for the unwary. Second, the Article demonstrates that the benefits of these merciless rules are minimal. Although some serve the same evidentiary, ritual, protective, and channeling functions as the execution formalities, others further no discernable goal. Third, the Article critiques potential solutions to these problems. It explains that a handful of lawmakers and courts have moved in the right direction by relaxing the revocation formalities, extending harmless error into this sphere, and achieving justice in particular cases through the imposition of a constructive trust. Nevertheless, the Article also contends that these curative measures do not go far enough. Accordingly, the Article proposes a novel path forward: importing the revocation formalities from trust law. In sharp contrast to the straitjacket of wills doctrine, trust law both permits settlors to revoke their trusts by any reasonable means and to create their own private revocatory rules. Thus, extending this lenient approach into the realm of wills would minimize intent-defeating outcomes, dovetail with broader trends in the field, and bring revocation law into the twenty-first century.

Keywords: wills, testators, revocation, Statute of Frauds, Statute of Wills, formalities

Suggested Citation

Horton, David, Revoking Wills (March 15, 2021). Notre Dame Law Review, Vol. 97, forthcoming 2021, Available at SSRN: https://ssrn.com/abstract=3805253

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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