Curing Execution Errors and Mistaken Terms in Wills: The Restatement of Wills Delivers New Tools (and New Duties) for Probate Lawyers, 18 Probate & Property 28 (Jan./Feb. 2004)
In recent years a remarkable change has been emerging in the way American courts treat cases involving errors in the execution or mistakes in the content of wills. When some innocuous blunder occurred in complying with the Wills Act formalities, such as when one attesting witness went to the washroom before the other had finished signing, the courts used to apply a rule of strict compliance and hold the will invalid. Likewise, in cases of mistaken terms, for example, when the typist dropped a paragraph from the will or the drafter misrendered names or other attributes of a devise, the courts applied a no reformation rule; the will could not be corrected no matter how conclusively the mistake was shown.
Ironically, these intent-defeating results were reached in the name of legal requirements that were meant to be intent-serving. The various state Wills Acts require three main formalities for attested wills-written terms, the testator's signature, and attestation by two witnesses. Wills have to be given effect when the testator has died and is unable to testify about what was intended. The formalities are designed to generate and preserve highly reliable evidence of intention. The requirement of written terms obliges the testator to articulate his or her intention. Compliance with the signature and attestation requirements provides evidence of genuineness and finality, while cautioning the testator about the seriousness of the document. In extreme cases the requirement that the will be attested by disinterested witnesses may also serve a protective function, to spare the testator from imposition.
Date of Authorship for this Version
Langbein, John H., "Curing Execution Errors and Mistaken Terms in Wills: The Restatement of Wills Delivers New Tools (and New Duties) for Probate Lawyers" (2004). Faculty Scholarship Series. 504.