St. Mary's Law Journal


Often, the validity of a will is called into question in situations where the testator failed to execute the will in compliance with statutory formalities, although the intent to create a will was present. In Texas, harmless errors in the execution of a will are not excused, and the testator must comply with the statutory formalities set out in the Probate Code. Strict judicial adherence to statutory formalities leads to unjust results in situations where it is relatively clear that the testator intended to create a will but failed to comply with the execution requirements. The failure to comply with statutory formalities often produces the exact opposite of the testator’s intent and rules of strict compliance often lead to unjust results. A harmless error rule would allow the courts to excuse innocent execution mistakes, provided that the proponents of the will can prove by clear and convincing evidence that the testator intended the document to be a testamentary disposition. By adopting a harmless error rule like the rule adopted in several other jurisdictions, Texas probate courts will be able to address the issue of intent more directly, rather than being bound by the incomplete provisions of the code. The harmless error rule does not threaten the traditional precept that will formalities still serve a vital function; rather, the rule supports the underlying rationale of will formalities, which is to determine the intent of the testator. Statutory formalities remain necessary in order to protect against unwanted alteration of testamentary intent. Courts, however, should be prevented from imposing statutory formalities and invalidating otherwise valid wills where the testator merely makes a clerical error. The harmless error rule will ease the tension between a court’s responsibilities to observe strict compliance with will formalities, while acknowledging clear and convincing evidence of a testator’s intent.


St. Mary's University School of Law