Formality Of Channeling

Before a person dies, she can create a will containing her wishes for how her property should be distributed after her death. In order for a will to be deemed valid and probated, its execution generally must meet certain requirements called will formalities. The required will formalities vary from state to state. Some examples of the most frequently required formalities are that a will be in writing, signed by the testator, and witnessed and signed by at least two other individuals. Formalities focus on the following four functions: (1) the protective function; (2) the ritual function; (3) the evidentiary function; and (4) the channeling function. In addition, the will formalities serve a therapeutic function for clients by ensuring that

The ritual of a will signing, which requires the testator’s and witnesses’ signatures, confirms the will was created thoughtfully and best reflects the testator’s intent, rather than as a spontaneous document reflecting the testator’s temporary thoughts, or an allocation of assets resulting from coercion. This requirement is universal but satisfaction of it can be rather lenient. The will formalities also provide evidentiary documentation of the testator’s wishes, as well as witnesses who can testify about the validity of the will. The channeling function allows a will to travel through the legal system efficiently, and also directs individuals to trained lawyers who assist them in preparing a well-drafted

The ULC completed the Uniform Probate Code (UPC) in 1969, and has made significant revisions since, with the most recent version in 2010. The UPC has made significant contributions to the law reform movement for the relaxation of strict testamentary formalism. This movement has been in process for over thirty-five years, with limited success. Professor Langbein, who triggered the movement, argued that small, often inconsequential, defects should not void a will. Rather, such defects should lead to a further inquiry into whether the document expresses the decedent’s testamentary intent and whether the form substantially complies with formalities. Substantial compliance enables the court to probate the will to be consistent with the purposes of the Wills Act. The UPC both simplified will formalities and created a provision known as the “dispensing power.” The UPC’s dispensing power provision, which is supported by the Restatement (Third) of Property, permits courts to excuse non-compliance with will formalities, so long as there is “clear and convincing evidence” of testamentary intent. Clear and convincing evidence requires a level of subjective certainty about factual conclusions that is necessary to satisfy due process. The clear and convincing evidence requirement has been met in