The state probate code was amended in 2004 to permit documents that were intended to have testamentary effect but were not executed in accordance with the statutory requirements. The new probate code’s doctrine of substantial compliance holds that if a document was not executed in compliance with the statute, the proponent may establish by clear and convincing evidence that the writing was intended by the decedent to be a will. The doctrine also extends to a revocation of a will, an alteration of the will or partial or complete revival of an old will.
In the Anton, the decedent was involved in divorce proceedings with his wife. He went with his son-in-law to an attorney and instructed counsel to leave one-third of his estate to two of his children and one-third in trust for the grandchildren of a third child. Subsequently, the decedent changed his mind to have his estate left outright to his children in equal shares. Drafts of a will, power of attorney and living will were prepared, mailed and approved. An appointment for execution of the will was arranged. The decedent died that morning.
The attorney testified that the drafts and the execution set of documents were identical. After taking testimony, the court granted probate to the unsigned will. One part of this story is that copies of documents were sent to a son-in-law who spoke with the decedent and attended the meetings. He was a witness who could give testimony. A second factor was that the first meeting between the attorney, decedent and son-in-law occurred twenty-one days before death. Perhaps, more importantly, execution drafts were prepared an appointment scheduled and the application for probate was unopposed.
The Decision
This decision is marked departure from the cases studied in law school where wills were not probated because the witnesses did not see the testator sign or were not in the same room to see all of the signatures affixed.
s decision leads one to imagine its impact on non-probate assets. Clearly, beneficiary designations are creatures of contract law but one wonders if a default option, such as paying retirement benefits to an estate, can be cured by having benefits payable to a qualifying trust created under an unsigned will. We know that a state statute disinheriting a divorced spouse does not trump ERISA.
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