Mark Glover

Decoupling the Law of Will-Execution

The law of will-execution 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 change.This 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 reform.Just 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.

The Therapeutic Function of Testamentary Formality

Therapeutic jurisprudence is concerned with the psychological consequences of the law. This article uses this burgeoning field to analyze one aspect of the estate planning process, namely the formalities of will-execution. The article first identifies the positive and negative psychological consequences of the formalities that require valid wills to be written, signed, and witnessed. Although the analysis suggests that, when coupled with a rule of strict compliance, these formalities can negatively affect the testator’s psychological wellbeing, the article ultimately concludes that testamentary formality serves an overall therapeutic function. The article then examines various reforms of the law of wills, such as the proposals to reduce the formality of will-execution and to relax the law’s insistence on strict literal compliance, to determine whether these proposals bolster or diminish testamentary formality’s therapeutic function. The article argues that these proposals have important therapeutic ramifications, which policymakers should consider when evaluating whether to implement reform.