Harmless error rule allows use of ‘de facto will’

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Virginia lawyers have had a tool to validate wills that fail to meet the strict requirements of authentic­ity for almost nine years. Lawyers report increasing use of what has been called the “harmless error rule” for wills that don’t quite live up to the old probate standards.

‘De facto wills’ possible

Legislation signed into law in 2007 provides relief when there is “clear and convincing evidence” of a decedent’s in­tent to create, modify or revoke a will, even if the testator’s action doesn’t meet all the traditional requirements.

An action to effectuate such a “de facto will” must be filed in circuit court with­in a year of the decedent’s death. All interested parties are to be named and brought before the court.

The legislation adopts, in part, a pro­vision of the Uniform Probate Code. Drafters suggested the statute would be applied mainly when a will lacked the normal witness signatures or when a testator sought to add changes without the attendant formalities.

Virginia Code § 64.2-404 stops short on the matter of a testator’s signature. The statutory remedy cannot be used to excuse failure of a decedent to actually sign a will.

Legislative origin unclear

The “saving statute,” as one judge called it, was offered by lawyer-legislator Ward L. Armstrong of Martinsville.

Bills that change the trusts and estates laws in Virginia normally go through the Wills, Trusts & Estates Section of the Virginia Bar Association, according to member Robert T. Danforth, law profes­sor at Washington & Lee University.

The 2007 bill – offering salvation for otherwise nonconforming wills – was supported by the section, according to VBA records. But Danforth said mem­bers wondered where it came from.

“It’s kind of a strange statute,” he said. “It never went through our committee. I remember that my colleagues and I won­dered who urged the change,” Danforth said.

Armstrong – defeated for reelection to the House of Delegates in 2011 – did not immediately respond to an inquiry about the impetus for the bill.

Few reported decisions

The Supreme Court of Virginia has addressed § 64.2-404 only once. In 2010, the court said that applying the law, which was in effect on the date of the tes­tator’s death, would not be a retroactive application.

The court sent the case back for further consideration by the Hampton trial court. A final decision in the case was not reported.

In 2013, Fairfax Circuit Judge Robert J. Smith declined to apply what he termed the “saving statute” because the proffered will did not need “saving,” in his view. Smith cited the “lost will doctrine” to approve pro­bate of a will that carried only “conforming” signatures.

In 2014, Henrico Circuit Judge Cather­ine C. Hammond applied the law to val­idate a typed and signed will that lacked witness signatures. Three live witnesses testified in court that they saw the testator sign the will in their presence.

Lawyers relate success with the harm­less error rule in other cases.

Tysons Corner lawyer Thomas W. Repczynski won approval of a “de facto will” that contained alterations made without the normal formalities in a 2014 Arling­ton ruling, according to his recent article in the Vir­ginia State Bar Trusts & Estates Section newsletter.

Virginia Beach’s M. Bradley Brickhouse has used the harmless error statute at least three times, he said.

In one case, a woman’s will contained a reference to a separate list of dispositions of tangible personal prop­erty. Using this construction, the testator can make changes at any time in bequests of personal property without having to have the will executed again.

The testator mistakenly used a revised list of tan­gible personal property to also make a bequest of real property.

“She just made a mistake when she went home and decided to give away some real property, too,” Brick­house said.

Ordinarily, that provision would be ineffective, but Brickhouse said his firm presented evidence that al­lowed the judge to admit the provision to probate un­der § 64.2-404.

“It was clear that was her intention. Her wishes were done,” Brickhouse said.

The saving statute enacted in 2007 made the result possible.

“Before [that statute], you were done. You couldn’t do anything,” he said.

Another Brickhouse win involved approval of a typewritten will that was signed by the testator, but not witnessed or notarized.

Growth industry?

Cases requiring application of the harmless error rule could become more common, Brickhouse said.

“This is going to get worse and worse, and be used more and more,” he said.

More people are creating “do it yourself” wills by re­vising wills they find on the Internet, Brickhouse ex­plained. They not only skip hiring a lawyer, they even decline to pay for a form from Avvo or LegalZoom.

“It’s easier for people to put words on a page, and give away things, than ever before,” Brickhouse said.

Danforth – the law professor – shares that concern about dubious dispositions that lack the attendant badges of authenticity.

“I don’t think too much of the statute,” he said. “To me, there are good reasons for those requirements. You want to make sure there’s no fraud or undue in­fluence.”

“I guess I’m just old-fashioned. What’s the point of having the statutory requirements if, a few provisions later, you say it doesn’t matter.”

Danforth acknowledged the saving statute’s thresh­old requirement of “clear and convincing evidence.”

“That’s the safety net,” he said.