In the field of inheritance law, will execution and revocation formalities loom large because, traditionally, courts have demanded strict compliance with statutory procedures for creating and revoking a testamentary instrument. As to the law of revoking wills in their entirety, Professor David Horton, in Revoking Wills, argues that the high formalism of will revocation doctrine is problematic and should be loosened by: (1) courts increasing their nascent use of the constructive trust in certain failed will revocations, (2) extending the harmless error rule into will revocation law, and (3) as “a novel path forward: importing the will revocation formalities from trust law.” (P. 563.)1
To help frame his critique of will revocation law, Professor Horton first summarizes will execution law, which “has long been synonymous with ‘harsh and relentless formalism.'” (P. 573, quoting Professor John Langbein.) The oft-cited benefits of will execution formalities include: (1) the “evidentiary” function of ensuring that the decedent’s wishes are in a “reliable and permanent form”, (2) the “ritual” or “cautionary” function that protects against “inconsiderate action”, (3) the “protective” function of “shielding testators from fraud and undue influence”, and (4) the “channeling function” of “standardizing the appearance of testamentary instruments”. (Pp. 575-76, citations omitted.) Professor Horton argues, however, that the formalities in will execution law are becoming more flexible, as seen in the rise of the harmless error rule and statutes governing electronic wills. (Pp. 579-80.)
Professor Horton next critiques will revocation formalities. As to the rule that “a revocatory act performed on a mere [] copy is legally ineffective” (the “copy rule”) (P. 587), Professor Horton concedes that it serves the four oft-cited benefits and functions of formalities, but that “these benefits come at a hefty price”, citing cases of failed will revocations even though the testator defaced the copy, showed evidence of revocatory intent, or even followed a lawyer’s instructions to revoke a will copy. (Pp. 597-98.)
As to the rule that a third party may only revoke the testator’s will by act in the testator’s presence, Professor Horton persuasively argues that any evidentiary function of requiring the testator’s presence in a third-party will revocation “does not generate proof of anything” if witnesses are not also required. If evidence is examined at a trial, “the testator will be deceased and thus unable to testify.” (P. 599.) Professor Horton notes that requiring the third party to revoke a will “at the testator’s direction” (and not necessarily in the testator’s presence) prevents inadvertent or fraudulent will revocation. (Pp. 599-600.)
As to the rule that subsequent writings revoking wills must satisfy the formalities of will execution (a concept that Professor Horton calls “the equal dignity principle”) (P. 582), Professor Horton submits that it “glosses over meaningful divergences between execution and revocation” and theorizes that “deterring bogus [will] revocations may not be as important as deterring the creation of bogus wills.” (Pp. 601-02.) Professor Horton notes that the execution of sham wills is a “legitimate concern, in part, because they can benefit anyone” whereas the only people profiting from a will being revoked in its entirety are either intestate heirs or the beneficiaries of a prior instrument. (P. 602.)
Professor Horton also critiques the extremely rigid requirement found in some states that a will can be revoked only by a subsequent will that conveys property. In states that impose this requirement, courts have felt compelled to disregard a purely revocatory instrument devoid of any affirmative property dispositions (a type of document that Professor Horton calls an “anti-will”). Professor Horton argues that “[r]efusing to enforce anti-wills is absurd” and “does not serve any of the purposes of the execution formalities.” (Pp. 590, 603-04.) He persuasively notes that requiring a revoking will to make a conveyance: (1) does not make the testator’s revocatory intent clearer, (2) does not increase the thoughtfulness or voluntariness of the testator’s revocation, (3) does not make any probate proceeding easier, and (4) does not increase the will’s reliability, which is already assured under the equal dignity principle. (P. 603.)
A will can be revoked without witnesses or a subsequent will by the testator’s performance of a revocatory act, such as cancellation or destruction, upon the will. Professor Horton, however, describes the “spectacular revocation failures” arising from the cancellation rule that requires revocatory words such as “void” or “I revoke” to be inscribed by the testator on the language of a will rather than by a third party or on a blank space within the document. (P. 604.) Professor Horton discusses cases in which cancellation language did not touch any language of the will, so it had no legal effect; in other cases, courts disregarded attempted revocations where the language was written by a lawyer, rather than the testator. Professor Horton insightfully notes that writing words of cancellation “serves the evidentiary, ritual, protective, and channeling functions better than other ways of revoking by act” because the testator often writes the reason for revoking the will and the testator’s handwriting and signature are “far more probative of the testator’s [revocatory] intent than drawing lines, tearing, or burning the will, ‘which can sometimes be ambiguous.'” (P. 605, citation omitted.)
Electronic wills are on the rise, and Professor Horton contends that “electronic will revocation laws suffer from several ambiguities and omissions.” (P. 605.) Professor Horton’s insights about the revocation of electronic wills are too numerous to address within this jot, but suffice it to say that he raises interesting questions about: (1) how deleting an electronic file to a “recycle bin” might not comply with invalidation rules that require a revoked electronic will to be rendered “inaccessible” or “unreadable”, (2) problems created by the existence of electronic copies of electronic wills, and (3) potential barriers to revocation introduced by third-party e-will custodians. (Pp. 605-08.)
Because will revocation rules sometimes fail to serve the same evidentiary, ritual, protective, and channeling functions as will execution formalities, and, because strict will revocation formalism often thwarts a testator’s intentions, Professor Horton supports “softening the blow” of will revocation formalities. (P. 608).
First, Professor Horton recommends that courts increase their use of constructive trusts, which some courts have imposed to prevent “inheritances that would be an undeserved windfall.” (P. 608.) A constructive trust is no “panacea” for Professor Horton, however, because: (1) some courts refuse to impose a constructive trust “on the grounds that doing so would be an improper end-run around the [will] revocation formalities”, (2) it might not be available when “there is an error in the execution of [a] document”, and (3) a plaintiff seeking one must meet a high standard of providing proof “so clear, convincing, strong, and unequivocal as to lead to one conclusion.” (Pp. 611-12.)
Second, Professor Horton applauds the 1990 UPC’s attempt to de-formalize will revocation law but argues that it took only “modest steps.” (P. 612.) The 1990 UPC provides that a revocatory act (such as words of cancellation) is effective “whether or not [it] . . . touched any of the words on the will.” (P. 612.) Also, the 1990 UPC expanded the harmless error rule to anti-wills, applying it to “a partial or complete revocation of the will.” (P. 613, citation omitted.) Professor Horton notes, however, that the harmless error rule “could not cure a would-be revocation that violates the copy rule or the presence requirement.” (P. 613.)
Professor Horton concludes by proposing that will revocation law should import the “pliable rules that govern the revocation of a trust.” (P. 614.) He notes that in trust law, “[s]ettlors usually do not need to satisfy rigid mandates” because of trust revocation law’s two-tiers: first, settlors generally may revoke a trust “in any way that provides clear and convincing evidence of the[ir] . . . intention to do so”, and, second, settlors wanting stricter revocation rules may customize the procedures for trust alteration (for example, by requiring delivery of a signed revocation to the trustee) through inclusion of express language in the trust . (P. 615.) The benefits of will revocation law mirroring trust revocation law include, per Professor Horton: (1) liberating testators from will revocation formalities and (2) harmonizing revocation rules for both paper and electronic wills. (P. 615.)
It seems as if the time has come to talk about will revocation law. I was persuaded by Professor Horton’s argument that revoking wills is different from executing wills–the formalities for the latter may not be needed for the former. At a minimum, states should implement the 1990 UPC revisions that (1) allow revocation even if the revocatory act does not touch any words on the will, and (2) expand the harmless error rule to anti-wills. To my mind, Professor Horton’s proposal to import trust revocation formalities into will revocation law would be another useful way to respect and effectuate testamentary intent. Thanks to Professor Horton for showing us how will revocation law can be improved!
- An important caveat from Professor Horton: his article focuses on canceling wills in their entirety rather than topics such as “implied revocations triggered by divorce, partial revocations by act, and the revival of revoked wills.” (P. 573.)
