Also known as: harmless error · harmless-error principle · harmless error rule · harmless error doctrine
Written by attorneys — see sources below.
A rule that excuses a defect in will execution formalities when the proponent establishes by clear and convincing evidence that the decedent adopted the document as his or her will.
Henry Hoffman met with his controller to review a typed draft will. He read it, signed it, and had it notarized, but the notary mistakenly dated the acknowledgment one week earlier and no second witness signed. After Henry died, his second wife offered the document for probate. His son objected based on the execution defects. The court admitted the will because clear and convincing evidence showed Henry adopted the document as his will.
Harriet Hamilton offered her late husband's will for probate. One required witness had failed to sign in the testator's presence. The son objected on execution grounds. The court admitted the will because clear and convincing evidence showed the decedent adopted the document as his will.
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View caseThe proponent must establish by clear and convincing evidence that the decedent adopted the document as his or her will. This standard replaces strict compliance with formalities when the evidence shows the decedent's intent.
No. A missing witness signature is an execution defect that may be excused if clear and convincing evidence shows the decedent intended the document as the will. The court focuses on adoption of the writing rather than perfect compliance.
Strict compliance invalidates any will that fails a statutory formality. The harmless error principle allows probate when the proponent proves by clear and convincing evidence that the decedent adopted the document despite the defect.
…under section 2-503 of the Uniform Probate Code, which by way of a dispensing power allows a probate court to excuse a harmless error in complying with the formal requirements for executing a valid will, it is doubtful that an unsigned will would be given any effect. See Unif. Probate Code § 2-503 cmt. (amended 1997), 8…