Document Type

Article

Publication Date

12-6-2012

Abstract

Wills must be formally executed To execute a valid will a testator generally must comply with a formal process that requires a will to be written signed by the testator and attested by two witnesses By contrast wills may be informally revoked The testator may revoke a will simply by destroying it Although this inconsistency has largely been overlooked this article argues that both the formal willexecution process and the informal willrevocation process are mechanisms by which the law of wills attempts to protect familiesA formal willexecution process protects the decedent's family members primarily by making it difficult for the decedent to disinherit them If a decedent leaves no will the decedent's estate is distributed through the legislatively prescribed estate plan of intestacy which results in the estate being distributed within the family The formal willexecution process represents a roadblock to the exercise of testamentary freedom and makes it less likely that the decedent will opt out of intestacy Similarly an informal willrevocation process protects families by making it easy for the testator to revoke a will and therefore to opt back into intestacy By pushing decedents toward intestacy both the formality of willexecution and the informality of willrevocation serve a family protection function and their roles in furthering this policy should not be ignored in the debates over reform to the willexecution and willrevocation processes

First Page

411

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