David Horton: Revoking Wills (March 15, 2021)

David Horton, of the University of California, Davis- School of Law, has made available for download his article, “Revoking Wills”, to be published in the Notre Dame Law Review, volume 97 (forthcoming 2021). The abstract is as follows:

This Article…reveals that the revocation formalities defeat testamentary intent far more often than is commonly believed. Indeed, testators fail to achieve their goals when they destroy a photocopy, deface the margins of their will, leave the room while a third party revokes the instrument, or express their wishes in a writing that is not a full-fledged will. Thus, even more than the execution formalities, revocation doctrine consists of tripwires and traps for the unwary. Second, the Article demonstrates that the benefits of these merciless rules are minimal. Although some serve the same evidentiary, ritual, protective, and channeling functions as the execution formalities, others further no discernible goal. Third, the Article critiques potential solutions to these problems. It explains that a handful of lawmakers and courts have moved in the right direction by relaxing the revocation formalities, extending harmless error into this sphere, and achieving justice in particular cases through the imposition of a constructive trust. Nevertheless, the Article also contends that these curative measures do not go far enough. Accordingly, the Article proposes a novel path forward: importing the revocation formalities from trust law. In sharp contrast to the straitjacket of wills doctrine, trust law both permits settlors to revoke their trusts by any reasonable means and to create their own private revocatory rules. Thus, extending this lenient approach into the realm of wills would minimize intent-defeating outcomes, dovetail with broader trends in the field, and bring revocation law into the twenty-first century.

To see the full article, click: “Revoking Wills” by David Horton

Posted by Marin Larkin, Associate Editor, Wealth Strategies Journal.

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