Document Type

Article

Publication Date

10-20-2013

Abstract

The law of willexecution includes two related but distinct components The first is formality including the requirements that a will be written signed and witnessed The second is the standard that courts use to evaluate compliance with these formalities Courts traditionally apply a rule of strict compliance under which any formal defect invalidates the will Fueled by longtime criticism of this rule an ongoing reform movement seeks to relax the law's insistence on strict compliance However despite broad support within the legal academy this reform effort has been slow to instigate changeThis Article argues that the reform movement's struggles can be explained in part by the way that scholars evaluate the need for reform When analyzing this area of law they typically ask two questions 1 What are the functions of will formalities and 2 How can the law be changed so that these functions are better served By focusing on formality's purpose the reform movement overlooks the purpose of strict compliance and it therefore fails to clearly identify the costs and benefits of reformJust as will formalities serve specific functions the rule of strict compliance also serves various functions The loss of these functions is a potential cost of reform that the reform movement disregards when it focuses on formality This Article therefore illuminates the utility of reform by clearly identifying the functions of strict compliance and by analyzing whether these functions justify the rule's place in the law of wills This analysis clarifies the costs and benefits of reform and ultimately refines the argument in favor of change

First Page

597

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