Estate Planning: Harmless Error Rule Now Applies to Wills in Oregon

Effective January 1, Oregon law adopted what has been called the harmless error rule
regarding the execution of wills. By virtue of a newly effective statute, a writing that formerly
would not have been considered a valid will because it was not executed in accordance with the
laws requirement, might now qualify as a valid will under Oregon law. To understand how this
new statute changes things, we first need to look at the formalities required when executing a
will.
Oregon law regarding the execution of wills traces its origins to the Statute of Wills, which was
first enacted in England in the sixteenth century. Proper execution of a will in Oregon requires
that a writing: (1) be signed by the testator (or by some other person at the testators direction
and in his/her presence); and, (2) be attested to by two or more witnesses by signing their names
to the will. Without observance of these formalities, the writing would not be a valid will.
Indeed, a will has not been executed until the [above formalities] have been satisfied.1
So, for example, assume that a will is prepared and signed by an individual in the presence of
two persons who then sign an affidavit attesting to what they have witnessed. Assume also that
one of the witnesses neglects to sign the will itself, a fact that is not discovered until after the
testator has passed away. Legally, without the signatures of two witnesses on the will, the writing
did not satisfy the requisite formalities and, therefore, was not a valid will.
Enter the harmless error rule. Now, a proponent of the defective writing could file a petition in
court and seek to have the writing validated as a will despite its lack of two witness signatures.
The proponent would have to convince the court with clear and convincing evidence that the
testator did in fact intend the writing to be his or her will. The petitioner would be required to
give notice of the petition to those who have an interest in the decedents estate. Those folks, in
turn, would have the opportunity to contest the petition. The court would then take evidence and
decide whether the writing was proven as the decedents will.
Not surprisingly, the harmless error rule has its supporters and its detractors among estate
planning attorneys. Those in favor of it point out that it only applies to wills that are defective in
their execution. This new statute, they would argue, allows a court to decide the writings
validity by reference to the testators intent rather than by his or her compliance with legal
formalities. Supporters will also argue that the testamentary wishes of a decedent shouldnt be
thwarted by innocent mistakes in the execution of the will. Given the requirement of proof by
clear and convincing evidence, a petitioner seeking to utilize this procedure to validate a will
must meet a higher burden of proof than is typically required in civil litigation.
On the other side, those who oppose this new approach predict, probably correctly, that it will
result in more litigation, as proponents of botched wills attempt to validate them in court.
Opponents also fear that notwithstanding the statutes requirement for clear and convincing
evidence, relaxing the formalities for executing a will allows a judge to substitute his or her
discretion for bright line rules which hitherto served as a form of quality control measures to
protect against fraud.
1 In the Matter of the Estate of Walker, 145 Or App 144, 147 (1996).

Clearly, though, estate planning attorneys on both sides of this debate will recognize that the
legal formalities for executing a will are more demanding than those required for the signing of
trust agreements, transfer on death deeds, durable powers of attorney and the ordinary
beneficiary designations on investment accounts, all of which are integral in estate planning.
Whether such stricter standards for wills remain necessary is a legitimate question.
It will be interesting to watch how this new statute plays out in the inevitable court cases it will
spawn. Will the harmless error rule be proven to be a reasonable accommodation to reality or,
instead, an unwise abandonment of longstanding protections against fraud? Or, will it merely
serve to add another opportunity for contestants to fight for the spoils of a decedents estate to
the despair of judges and the glee of trial lawyers?
1/15/2016 Charles A. Ford of Hunt & Associates, P.C. All rights reserved.