Thursday, January 4, 2018
Camille Davidson (Wake Forest), Strict Compliance and Wills Act Formalities (JOTWELL) (reviewing Peter T. Wendel (Pepperdine), Wills Act Compliance and the Harmless Error Approach: Flawed Narrative Equals Flawed Analysis?, 95 Or. L. Rev. 337 (2017)):
In the law of Wills, the testator’s intent is of upmost importance. If there is clear and convincing evidence of a testator’s intent, then a document intended to be his or her will should be probated, right? Not so fast—according to Professor John Langbein, in a jurisdiction that has adopted the strict compliance approach to Wills Act formalities a document will not constitute a validly executed will if all of the statutory requirements are not met, even when evidence shows that the testator intended the document to be his or her will. Langbein penned substantial compliance and harmless error proposals as alternatives to strict compliance. In Wills Act Compliance and the Harmless Error Approach: Flawed Narrative Equals Flawed Analysis?, Professor Peter T. Wendel asserts that Professor Langbein has not framed the narrative correctly and therefore the analysis of the issue is flawed. He rephrases the narrative so that the debate can continue in a less simplistic manner. ...
Professor Wendel argues that when Professor Langbein framed the narrative as a choice only between strict compliance and the Langbein proposals it was flawed. In reality, courts are creating a body of substantial compliance laws that are more pragmatic than the Langbein proposals. Wendel labels these approaches as flexible strict compliance. He says the real question is whether Langbein’s substantial compliance/harmless error proposals are better than the flexible strict compliance approach. ...
Professor Wendel rephrases the narrative—flexible strict compliance vs. Langbien and leaves us with a new narrative to discuss. He says the answer to that question is far from obvious.