Partial Harmless Error for Wills: Evidence From California

• Author: David Horton
• Position: Professor of Law and Chancellor's Fellow, University of California, Davis, School of Law (King Hall)
• Pages: 2027-2068

2027

Partial Harmless Error for Wills:

Evidence From California

David Horton*

ABSTRACT: In many legal systems, the Wills Act requires testators to

memorialize their wishes in a signed and witnessed writing. For centuries,

courts insisted on strict compliance with these fussy statutory requirements.

But in 1975, South Australia adopted the harmless error rule, which permits

judges to forgive execution defects if there is compelling evidence that a

decedent intended a document to be effective. Although several countries have

now embraced this powerful curative doctrine, most American states have not.

The root of this resistance is fear that replacing the clean lines of traditional

law with a muddy standard will breed litigation.

This Article updates our understanding of the harmless error rule by offering

the first study of its impact on the day-to-day operations of a U.S. probate

court. This Article’s centerpiece is a dataset of 2,453 estates from Alameda

County, California, between 2008 and 2010. The Golden State adopted

what I call “partial” harmless error—a statute that can cure some deviations

from the Wills Act but not others—in 2009. Thus, my research offers new

insight into the costs and benefits of relaxing the formalities that govern the

execution of wills. My marquee finding is that partial harmless error’s impact

on the litigation rate was minimal. In addition, I show that by retaining

certain statutory elements as mandatory, partial harmless error prevents

migraine-inducing dilemmas about whether a decedent wanted an

instrument to be her will.

I. INTRODUCTION ........................................................................... 2028

II. THE LAW OF WILL EXECUTION ................................................... 2034

A. TRADITIONAL LAW ................................................................ 2034

B. HARMLESS ERROR ................................................................. 2037

1. South Australia ............................................................ 2037

2. America ........................................................................ 2042

* Professor of Law and Chancellor’s Fellow, University of California, Davis, School of Law

(King Hall). Thanks to John H. Langbein for helpful comments, and to Thomas P. Gallanis and

the editors of the Iowa Law Review for inviting me to participat e in this symposium.

2028 IOWA LAW REVIEW [Vol. 103:2027

III. PARTIAL HARMLESS ERROR: EVIDENCE FROM

CALIFORNIA ................................................................................ 2045

A. METHODOLOGY AND CAVEATS ............................................... 2045

B. RESULTS ............................................................................... 2050

IV. POLICY IMPLICATIONS ................................................................. 2058

A. LITIGATION RATES ................................................................ 2058

B. TESTAMENTARY INTENT ........................................................ 2065

V. CONCLUSION .............................................................................. 2067

I. INTRODUCTION

Gerard Caspary was born in 1929 in a prosperous Jewish neighborhood

in Frankfurt, Germany.1 When Caspary was four years old, Hitler came to

power, and the Caspary family fled to Paris.2 In 1940, “the Nazis invaded the

city.”3 Caspary’s parents were sent to Auschwitz, where they were killed.4

Caspary eluded capture and for three years lived underground in South

France.5

When the war ended, Caspary immigrated to America.6 He attended

Swarthmore and Harvard, won a Guggenheim Fellowship, and became a

beloved medieval history professor at the University of California, Berkeley.7

Yet as he aged, he increasingly felt compelled to examine his own dark past.8

Shortly before he retired, he began to teach an undergraduate seminar on

the Holocaust.9 He also wrote a book that combined his childhood memories

with translations of his family’s wartime letters.10

In the spring of 2005, Caspary scheduled a meeting with an estate

planner.11 On May 25, the day before the appointment, Caspary typewrote a

1. Janet Gil more, Medieval History Professor, Devoted to Students, Dead at 79, UCBERKELEYNEWS

(Apr. 9, 2008), http://www.berkeley.edu/news/media/releases/2008/04/09_casparyobit.shtml;

see also Paula S. Fass et al., In Memoriam: Gerard Ernest Caspary, UNIV. OF CAL., http://

senate.universityofcalifornia. edu/_files/inmemoriam/html/g erardernestcaspary.html (last v isited

Mar. 19, 2018).

2. See Gilmore, supra note 1.

3. See id.

4. See id.

5. See Fass et al., supra not e 1; see also Gilmore, supra note 1.

6. See Fass et al., supra note 1 .

7. See id.

8. See Gilmore, supra note 1; see also Fass et al., supra note 1.

9. See Fass et al., supra not e 1.

10. See id.

11. See Opposition to Petition for Prob. of Will at 2, Estate of Caspary, No. RP08396884

(Cal. Super. Ct. Mar. 27, 2009).

2018] PARTIAL HARMLESS ERROR FOR WILLS 2029

one-page document entitled “Last Will.”12 In it, Caspary named two executors

and expressed his desire to leave $10,000 to his godson, $5,000 to his

housekeeper, and the “[b]ulk of [his] estate” to the Holocaust Museum in

Washington, D.C.13 However, other portions of the writing seemed tentative,

such as the directive that the “[e]xecutors [are] to receive 5% (?) of [the]

estate from the top.”14 In shaky handwriting at the foot of the page, Caspary

added his name, address, phone number, and email.15

12. See Petition for Prob. of Will & for Letters Testamentary at 8, Estate of Caspary, No.

RP08396884 (Cal. Super. Ct. Jan. 28, 2009).

13. Id.

14. Id. (emphasis added).

15. Id.