The Harmless Error Statute
Some states have adopted a harmless error statute that allows a document that does not meet the full legal requirements of a will to be considered valid and admitted to probate as long as you intended for it to be your will.
Having a last will and testament is an estate planning tool to help people assert control over who will receive their money and property.
It also includes information about who will close out their affairs and how they should do this.
People who die without a legally recognized will are typically subject to the state’s default rules regarding who will receive their assets.
Dying intestate, without a will, is far from ideal. In these cases, the court assumes control of probate.
State laws are followed with money and property passed to heirs based on their relationship to the decedent.
Unfortunately, this means the decedent has no say in distributing their money and property.
If the decedent has no surviving family members, the state is the sole beneficiary of the estate.
Your will must be properly prepared and executed to ensure your wishes are followed.
What does a last will and testament need to be valid?
The three requirements for a will to be legally valid and enforceable include:
- It must be in writing
- It must be signed by the person who wrote the will (testator)
- It must be signed by the required number of witnesses who observe the testator signing the will (some states require two and some three)
The rules for executing a will are contained in section 2-502 of the Uniform Probate Code (UPC), which standardizes state laws regarding trusts, wills, and the probate process.
However, probate law varies by state because fewer than half of states have adopted the UPC in its entirety.
What is the harmless error provision?
In 1990, a harmless error provision was added to the Uniform Probate Code in section 2-503.
This provision states that a document that was not executed in compliance with section 2-502 of the Uniform Probate Code can be treated as though it was compliant if the issue limiting compliance can be overcome with “clear and convincing evidence that the decedent intended the document” to serve as their will.
The American Bar Association (ABA) notes that the two most common errors that the harmless error rule was intended to address include:
- A lack of proper attestation (no witnesses or insufficient number of witnesses)
- Edits to the will by the testator (when a testator crosses off a gift or name in their will and replaces it with another)
The ABA says that “the rule as drafted is not limited to these problems and has been applied more broadly.” The ABA notes that courts are more likely to excuse missing attestation than a missing testator signature.
Noted by the Legal Information Institute at Cornell Law School, even though the harmless error rule sometimes excuses missing signatures and attestations when executing a will, the requirement that a will be in writing is typically not excused.
Which states have a harmless error statute?
States that have adopted a harmless error statute include:
- California: require the decedent’s signature
- New Jersey
- Ohio: require the decedent’s signature
- Oregon: requires giving notice to heirs and providing 20 days for anyone receiving notice to object to the court’s ruling
- South Dakota
- Virginia: require the decedent’s signature
For example, they allow video witnessing or notarization to satisfy attestation requirements.
When might the harmless error statute be used?
The harmless error statute may be invoked when people die without a will that the court recognizes.
Surviving family members and estate planning attorneys may need to rely on this statute if they possess a document that expresses the decedent’s intentions but contains defects that the court may overlook.
It must contain clear and convincing evidence that this is the case and occur in a state where this statute is on the books.
Clear and convincing evidence is open to interpretation, though state legal precedents may offer guidance:
- In Colorado, the harmless error rule was not applied in a case involving a signed note attached to a birthday card that a surviving spouse attempted to probate as a will.
- In Michigan, a court ruled that a suicide note left on a phone sufficed to permit the decedent’s estate probate.
There are many reasons a last will and testament may not fully meet requirements, including:
- COVID-19 restrictions
- Someone dies before signing their will
- A partially written will
- A handwritten note that is signed, dated and filed away
- A computer document that remains unsigned
The courts in the state where the decedent resided will decide what constitutes a harmless error. Your estate planning attorney can help write a legally binding last will and testament, so a decedent’s last wishes are executed.