Oregon Law Review : Vol. 95, No. 2 (2017)

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Wills Act Compliance and the Harmless Error Approach: Flawed Narrative Equals Flawed Analysis?
(University of Oregon School of Law, 2017-05-10) Wendel, Peter T.
What degree of compliance with the Wills Act formalities should the courts require when analyzing whether a will has been properly executed? The conventional wisdom is that historically courts have insisted on absolute strict compliance, favoring formalities over testamentary intent. In 1975, Professor John Langbein argued that substantial compliance with the Wills Act formalities should suffice. A little over a decade later, he modified his proposal, arguing for a harmless error approach. Professor Langbein’s proposals have been well received. Many academics have endorsed them. The Uniform Probate Code and the Restatement (Third) of Property have adopted his harmless error approach. Yet relatively few states have adopted either proposal. If Professor Langbein’s substantial compliance/harmless error proposals are so much better than strict compliance, what explains the failure of most jurisdictions to adopt either of them?