23rd Apr 2020
In this broader series on handwritten or holographic wills, we have been looking at the narrower issue of witnesses in recent posts.
The last post looked at an overview of why witnesses are used in conventional wills. The summary was: identification, and to prevent bad or tricky things.
I recently read some material from the National Conference of Commissioners on Uniform State Laws. They had a list of Four Functions Served by Will Formalities – which they had pulled from various academic sources. (Formalities means the rules for getting wills made and validly signed – including the witness requirement). I thought they were helpful to this discussion. So, I list them below, with some brief comments and explanation.
Evidentiary Function. The rules about how wills get made and signed, ensure there is a long-lasting and sure statement of exactly what the person making the will wanted.
Channeling Function. The rules about how wills get made and signed, help put the maker’s intent into a form that personal representative, courts, and others can understand and follow, without lots of questions about meaning or ambiguities, which can lead to confusion, disagreements, or lawsuits.
Ritual or Cautionary Function. The rules about how wills get made and signed, make sure the maker is serious about the process and understands the document is final and legally binding, and not just a draft or informal document.
Protective Function. The rules about how wills get made and signed, help make sure there are not serious problems in the process or end result – such as incapacity of the maker, forgery, perjury, undue influence, fraud, delusion, coercion – generally the bad or tricky things outlined in the prior post.