Comment by Leigh A. Shipp
Probate courts in the United States apply various remedies for defectively executed wills, whether the harmless error “dispensing power” (reflecting section 2-503 of the Uniform Probate Code), the doctrine of substantial compliance, or the implementation of a constructive trust. This Comment examines how probate courts in the United States have implemented the three remedies, looks at trends and patterns that are arising in the context of these equitable remedies, and discusses the costs associated with these available remedies. The Comment recommends that the utility of allowing courts to use their discretion on a case-by-case basis to determine whether the proponent of the will clearly and convincingly proves that the testator intended the document to be his will substantially outweighs any costs that may be associated with these available remedies. The Comment concludes that a harmless error standard modeled after Uniform Probate Code section 2-503 will achieve the most equitable results in the greatest number of cases in which statutory requirements for a valid will have not been met.
About the Author
Leigh A. Shipp. J.D. candidate 2005, Tulane University School of Law; B.A. 2002, Furman University.
Citation
79 Tul. L. Rev. 723 (2005)