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The Probate Doctrine of Substantial Compliance: In the Matter of Anton

The Probate Doctrine of Substantial Compliance:  In the Matter of Anton

Author: James F. McDonoughDate: October 30, 2015

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.

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