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88 Harv. L. Rev. 489 (1974-1975)
Issue 3

handle is hein.journals/hlr88 and id is 509 raw text is: JANUARY 1975 HARVARD LAW REVIEW SUBSTANTIAL COMPLIANCE WITH THE WILLS ACT John H. Langbein* Courts have long required literal compliance with the Wills Act formalities, automatically invalidating defectively executed wills. in this Article Professor Langbein argues for a functional rule of sub- stantial compliance that would treat some such defects as harmless to the purposes of the Wills Act. He contrasts the functional analysis that excuses the principal will substitutes fron compliance with Wills Act formalities, and he points to factors that make it likely that the substantial compliance doctrine would fit smoothly into existing practice without materially increasing the levels of probate litigation. T HE law of wills is notorious for its harsh and relentless formalism. The Wills Act prescribes a particular set of formalities for executing one's testament. The most minute de- fect in formal compliance is held to void the will, no matter how abundant the evidence that the defect was inconsequential. Pro- bate courts do not speak of harmless error in the execution of wills. To be sure, there is considerable diversity and contradiction in the cases interpreting what acts constitute compliance with what formalities. But once a formal defect is found, Anglo-American courts have been unanimous in concluding that the attempted will fails. This Article contends that the insistent formalism of the law of wills is mistaken and needless. The thesis, stimulated in part by relatively recent developments that have lessened the authority of the Wills Act, is that the familiar concept of substantial com- pliance should now be applied to the Wills Act. The finding of a formal defect should lead not to automatic invalidity, but to a further inquiry: does the noncomplying document express the decedent's testamentary intent, and does its form sufficiently approximate Wills Act formality to enable the court to conclude that it serves the purposes of the Wills Act? *Professor of Law, University of Chicago. A.B., Columbia, 1964; LL.B., Har- vard, 1968; LL.B., Cambridge, 1969; Ph.D., 1971. This Article incorporates suggestions on an earlier draft made by Gareth Jones of Cambridge University, Joachim Herrmann of the University of Augsburg, and Walter Blum, Allison Dunham, Richard Epstein, Spencer Kimball, Richard Posner and Max Rbheinstein of the University of Chicago Law School. VOLUME 88 NUMBER 3

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