REVOKING WILLS.

• Author: Horlon, David

Introduction 564 I. Making Wills 573 A. Formalism's Prise 573 B. Formalism's Decline 577 II. Revoking Wills 581 A. Early Law 581 B. Modern Law 584 1. Revoking by Act 585 2. Revoking by Writing 589 3. Revoking by Cancellation 592 4. Revoking Electronic Wills 594 III. Critiquing the Revocation Formalities 596 A. The Copy Rule 596 B. Presence 598 C. Equal Dign ity 601 D. Anti-Wills 602 E. Words of Cancellation 603 F. Electronic Wills 605 IV. Solutions 608 A. Constructive Trusts 608 B. The UPC 612 C. Importing Trust Formadities 614 Conclusion 617 INTRODUCTION

Recently, an Illinois resident named Tyler Brewer decided to revoke his will. (1) This instrument, which Brewer had signed in 1999, gave most of his assets to his brother, making only a gift of jewelry to his young daughter, Hannah.- (2) But as the years passed, Brewer had grown closer to Hannah and also fathered a son, Jourdan. (3) Thus, in 2012, as death approached, Brewer decided that his will was outdated. Because he could not find the original document, he marked up a copy, crossing out one provision, adding Jourdan's name to the section that identified his family, and handwriting on the first page: "[A]s of 9/22/12 [t]his will is [v]oid. I am working on a [n]ew one that [i]ncludes [h]oth Hannah and Jourdan[.] TB." (4)

In 2015, Jaime Marks, a soldier who was stationed at West Point, New York, signed a will leaving her condo and house to her husband, Marcelino Morales, Jr. (5) However, two years later, her marriage deteriorated. (6)' As a result, Marks scrawled "VOID" at the top of her will's cover page and added "[e]verything will be left to my three daughters: Jessica, Emily, and Erica Marks ONLY!!!" (7) She then signed and dated below the notation.8

In 2016, Nadya Elis, who lived in Maryland, hired a lawyer to help her cancel all her previous wills. (9) In front of two witnesses and a notary, Elis signed a writing entitled "Revocation of Will," which stated that she wanted to "revoke, terminate, abrogate, nullify, tear apart, destroy, and declare completely null and void any and all wills, codicils, and bequests made by me." (10)

These cases highlight an important hut neglected problem in inheritance law. For decades, no issue in the field has provoked as much controversy as the steps necessary to create a valid will. In Anglo-American legal systems, executing a will takes place in the shadow of the Wills Act: a nineteenth-century statute that requires wills to be written, signed by the testator, and attested by two witnesses who were present at the same time when they saw the testator sign or ratify the document. (11) In addition, about half of U.S. jurisdictions recognize holographic wills, which do not need witnesses but must be in the testator's handwriting and signed by her. (12) Traditionally, courts demanded strict compliance with these rules, voiding would-be wills for trivial errors, such as a misplaced signature, (13) witnesses who were not in the same physical space when the testator acknowledged the document, (14) or a stray typed word in a purported holograph. (15)

These doctrines, which I will call the "execution formalities," have captured the attention of generations of scholars. For instance, in separate articles published in 1941, Ashbel Gulliver and Catherine Tilson (writing together), and Lon Fuller (working alone) contended that each element of the Wills Act furthers a key goal. (16) By insisting upon a signed and witnessed writing, the statute preserves proof of the testator's wishes (the "evidentiary function"), reinforces the gravity of the process (the "ritual function"), discourages fraud and forgery (the "protective function"), and distinguishes wills from other legal instruments (the "channeling function"). (17) As later writers then elaborated, these external badges of authenticity minimize the "worst evidence problem": the fact that inheritance law hinges on the wishes of a decedent, who cannot "clarify his declarations, which may have been made years, even decades past." (18) In addition, because millions of people die every year, bright-line rules "enable probate courts to identify documents as wills solely on the basis of readily ascertainable formal criteria, thereby permitting probate to proceed in the vast majority of cases as a routine, bureaucratic process." (19)

But near the end of the twentieth century, a new cohort of academics offered a more skeptical account of traditional willexecution doctrine. Some of these critics argued that the Wills Act and holograph statutes had not kept pace with the times. (20) As they observed, in a movement called the "nonprobate revolution," owners were transmitting wealth through devices that are exempt from the execution formalities, such as inter vivos revocable trusts. (21) Compared to these user-friendly mechanisms--which do not need to be witnessed and can even be consummated orally--the steps necessary to create a will seemed excessive. (22) Similarly, a chorus of critics asserted that the practice of ignoring the testator's desires and refusing to enforce attempted wills for trivial mistakes was "inequitable," (23) "needless," (24) and an "anachronism." (25) Thus, "'[d]own with formalism' [became] the rallying cry of probate reform." (26)

This debate has intensified as the law has evolved. Over the past three decades, calls to reform the execution formalities have gained traction. The 1990 revisions to the Uniform Probate Code (UPC), the Restatement (Third) of Property: Wills and Other Donative Transfers, and twelve American jurisdictions have adopted a novel rule called harmless error, which allows judges to enforce a writing that does not satisfy the execution formalities if the decedent clearly meant it to be her will. (27) In addition, since 2017, nine states have sought to bring will making into the digital age by passing statutes that authorize electronic wills. (28) These developments have inspired a vibrant new literature about the future of estate planning. (29)

But despite the attention lavished on the creation of wills, the revocation of wills has flown underneath the radar. Since the British Parliament passed the Statute of Frauds in 1677, there have only been two ways to annul a testamentary instrument. (30) First, a testator can perform a "revocatory act" by burning, canceling, tearing, or obliterating the will with the intent to revoke it. (31) Second, a person can rescind a will by executing a writing that satisfies the rules that govern the making of a will. (32) This avenue--"revocation by will"--rests on the premise that because wills are formal documents, only an equally formal writing should be able to defeat them. (33) Surprisingly, even though these "revocation formalities" are the mirror image of the much-discussed execution formalities, academics have generally ignored them. (34)

This Article reassesses the law of will revocation. It has four goals. First, the Article reveals that the revocation formalities do more damage to testamentary intent than is commonly believed. The problem is not just that courts demand literal compliance with the revocation formalities. It is that judges have embellished these commands with an additional layer of technicalities. For example, each of the testators mentioned above failed to revoke their wills. Although Tyler Brewer handwrote " [t]his will is void" on a Xerox of the document, an Illinois appellate court held that "a revocatory act performed on a[] photocopy is legally ineffective." (35) Likewise, a New York Surrogate Court concluded that Jaime Marks's notation in the margins of her original will did not "physically obliterate it" and therefore "[wa]s insufficient to operate as a revocation [by act]." (36) Furthermore, Brewer's and Marks's handwritten, signed--but unwitnessed--expressions of intent were not proper revocations by "will," because neither of their states recognizes holographic wills. (37) Finally, and even more perversely, Nadya Elis's lawyer-drafted, signed, witnessed, and notarized writing was nothing more than words on a page. (38) It was not a revocation by "act" because it was printed on a separate piece of paper, rather than a "'cancel [ation]'... performed on the will." (39) Moreover, it was not a revocation by "will" since Maryland is one of several jurisdictions that only allow testators to revoke wills through writings that also dispose of some of their assets. (40)

These cases are not unique; indeed, revocation law often generates absurd results.

Second, the Article questions the value of these unforgiving revocation rules. Upon close inspection, these principles lack the virtues of the execution formalities. As noted, scholars agree that the Wills Act serves evidentiary, ritual, protective, and channeling functions. (41) Conversely, revocation doctrine is riddled with nuances that are hard to justify. For example, even if mandating that testators deface an original will deters forgery, this logic does not apply to cases like Tyler Brewer's, where the testator's penmanship demonstrates that the revocation is authentic. Even worse, ignoring language written in the margins (as with Jaime Marks's will) or requiring revocations by "will" to contain bequests (the downfall of Nadya Elis's attempted revocation) serve no discernable policy objective. Thus, the hallmark revocation doctrine is not merely formalism--it is empty formalism.

Third, the Article explains why electronic wills are going to exacerbate these problems. These cutting-edge testamentary instruments are sending policymakers back to the drawing board because several established methods of revoking paper wills, such as burning and tearing them, do not apply to intangible writings. Not surprisingly, then, the jurisdictions that have adopted e-will statutes have taken divergent approaches to revocation. (42)

Fourth, the Article evaluates potential cures for the pathologies of revocation. It explains that a slim...