Harmless Error Statute—A Saving Grace

When somebody dies without a legally recognized will, their money and property are typically subject to default state rules that determine who will receive it. To assert control over who will receive their money and property and who will wind up their affairs, many people choose to have a will prepared. In order for a will to carry out the person’s wishes, it must be properly prepared and executed or else the terms of the will may not be followed. However, for individuals who live in a state that has adopted a harmless error statute, even a document that does not meet all of the formal legal requirements of a will may still be considered valid and admitted to probate if they intended it to serve as their will.

What is the harmless error rule?

Normally, in order for a will to be legally valid and enforceable, it must meet the following criteria:

  • It is in writing.
  • It is signed by the testator (the person who made the will).
  • It is signed by at least two witnesses (most states require at least two witnesses; some require three) who observed the testator sign the will.

These rules are contained in section 2-502 of the Uniform Probate Code (UPC), which standardizes state laws about wills, trusts, and the probate process. Although intended to be adopted by all fifty states, fewer than half of the states adopted the UPC in its entirety. As a result, there are significant variations in probate law by state.

In 1990, a harmless error provision was added to the Uniform Probate Code in section 2-503. It states that a document that is not executed in compliance with UPC section 2-502 can be treated as though it was executed in compliance if the noncompliant defects can be overcome by “clear and convincing evidence that the decedent intended the document” to serve as their will.[1]

The American Bar Association (ABA) notes that the harmless error rule was primarily expected to address two types of defects that could prevent a will from being officially recognized:

  • Defective attestation (e.g., no witnesses or not enough witnesses)
  • Testator additions or amendments to a will (for example, the testator crosses off a gift or name in their will and writes in a different gift or name)

The ABA goes on to say that “the rule as drafted is not limited to these problems and has been applied more broadly.”[2] It adds that clear and convincing evidence is a high standard of proof, and that courts are much more likely to excuse missing attestation than a missing signature.

The Legal Information Institute at Cornell Law School notes that the harmless error rule sometimes excuses defects related to the signature and attestation requirements of executing a will, but the requirement that the will be in writing is usually not excused.[3]

Which states have a harmless error statute?

As of today, twelve states have adopted a version of the harmless error statute: Hawaii, Michigan, Montana, New Jersey, South Dakota, Utah, California, Colorado, Ohio, Virginia, Oregon, and Minnesota.

Some of these states follow UPC section 2-503. Other states have accepted the rule with modifications. For example, California, Ohio, and Virginia require the decedent’s signature. Oregon does not require the decedent’s signature but adds requirements such as giving notice to heirs and providing a twenty-day period for anyone receiving notice to object prior to the court’s ruling.

Minnesota’s harmless error rule was a direct response to COVID-19 and the social distancing rules that made it difficult to meet traditional will execution formalities, in particular the requirement that two witnesses provide a signature verifying that they witnessed the testator’s signature.[4]

In states where the harmless error statute has not been adopted, alternative workarounds to COVID-19 restrictions were adopted. New York, for instance, authorized residents to use video witnessing to satisfy attestation requirements. And in Texas, the requirement to execute a will before a notary was suspended and videoconference notarization was permitted.[5]

When might the harmless error rule be invoked?

Dying intestate—or without a will—is far from ideal. When that happens, state laws about intestate succession are followed, and a court takes charge of probate. Typically, this means that money and property are passed down to heirs based solely on their relationship to the deceased, with the surviving spouse and children taking precedence.

Although this arrangement may not be a problem in many families, it operates independently of the decedent’s final wishes. The decedent is left with no say over the allocation of specific assets to specific family members. And if a decedent has no surviving family members, the state is the sole beneficiary of the estate. Having a will in place avoids these issues.

Dying intestate can mean not only dying without a will but also dying without a will that is recognized by the court. The latter scenario can potentially be addressed by invoking the harmless error statute in a state where such a law is on the books. Surviving family members and estate planning attorneys may have to rely on this backup plan if they possess a document that expresses the decedent’s intentions but contains defects the court may be willing to overlook if clear and convincing evidence is produced.

Unfortunately, there is no exact definition of what types of evidence a court would consider clear and convincing, although state legal precedents can offer clues. In Colorado, the harmless error rule was not applied in a case involving a signed note attached to a birthday card that a surviving spouse attempted to probate as a will. In Michigan, a court ruled that a suicide note left on a phone was sufficient to permit probate of the decedent’s estate.

COVID-19 was an unusual and unpredictable occurrence that posed unique complications for executing a will. But the need to prove testamentary intent can arise for many reasons that have nothing to do with viruses and social distancing. Somebody could be on their deathbed and fail to sign the will before their passing. They could have most of a will in place and die unexpectedly. It could be a handwritten note that was signed, dated, and filed away, or a computer document typed up in a person’s final moments.

What constitutes a harmless error is ultimately up to the courts where the decedent lived to decide. Ideally, a person’s will is recognized as legal prior to their death. If forced to rely on the harmless error doctrine as a plan B for a loved one’s will, you should consult with an estate planning attorney to ensure that their final wishes are carried out.

[1] Daniel Miller, How Harmless Is Harmless? An In-Depth Look into the Harmless Error Rule, ACTEC Found. Mary Moers Wenig Writing Competition Winners 1 (2013), https://actecfoundation.org/wp-content/uploads/How-Harmless-is-Harmless-An-In-Depth-Look-into-the-Harmless-Error-Rule.pdf

[2] Susan N. Gary, When Is an Execution Error Harmless? Electronic Wills Raise New Harmless Error Issues, Prob. & Prop. Mag., Nov./Dec. 2019, at 41, https://www.americanbar.org/groups/real_property_trust_estate/publications/probate-property-magazine/2019/november-december/when-an-execution-error-harmless-electronic-wills-raise-new-harmless-error-issues/

[3] Harmless Error Rule, Wex (Legal Info. Inst.), https://www.law.cornell.edu/wex/harmless_error_rule

[4] Brian Dillon & Amy Erickson, Minnesota Enacts “Harmless Error” Rule Relaxing Formalities that Govern the Execution of Wills, MSBA Prob. & Tr. L. Sec. E-Newsl. (Minn. State Bar. Ass’n, Minneapolis, Minn.), Apr. 2020, at 2-3, https://www.mnbar.org/docs/default-source/sections/probatetrust_april2020newsletter.pdf?sfvrsn=a63dcebd_0

[5] Kathryn E. Kuhn, Using the Harmless Error Doctrine in Light of COVID-19, WealthManagement.com (Apr. 14, 2020), https://www.wealthmanagement.com/estate-planning/using-harmless-error-doctrine-light-covid-19