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David Horton*

No issue in inheritance law has sparked as much debate as the requirements for

making a valid will. For centuries, Anglo-American courts have insisted that decedents

obey rigid formalities, such as signing or acknowledging their wills before two witnesses.

These rituals preserve proof of the testator’s wishes, reinforce the gravity of estate

planning, prevent fraud and duress, and distinguish wills from other instruments.

But they also have a dark side. In scores of cases, judges have cited minor errors during

the execution process to invalidate documents that a decedent intended to be effective.

Accordingly, generations of scholars have critiqued will-creation doctrine. Recently,

these discussions have intensified, as several jurisdictions have embraced the harmless

error rule, which excuses trivial departures from the execution formalities, or adopted

statutes that validate electronic wills.

However, the well-canvased topic of creating a will has a little-noticed flip side.

Testators do not merely need to follow formalities to make a will; rather, they also must

jump through hoops to un-make a will. Since the British Parliament passed the Statute

of Frauds in 1677, there have only been two ways to annul a testamentary instrument:

by burning, tearing, canceling, or obliterating the document or by signing another will.

In sharp contrast to the extensive commentary on executing wills, revocation doctrine

has never received sustained attention.

This Article fills that vacuum. First, it reveals that the revocation formalities

defeat testamentary intent far more often than is commonly believed. Indeed, testators

fail to achieve their goals when they destroy a photocopy, deface the margins of their

will, leave the room while a third party revokes the instrument, or express their wishes

in a writing that is not a full-fledged will. Thus, even more than the execution

formalities, revocation doctrine consists of tripwires and traps for the unwary. Second,

the Article demonstrates that the benefits of these merciless rules are minimal. Although

some serve the same evidentiary, ritual, protective, and channeling functions as the

execution formalities, others further no discernable goal. Third, the Article critiques

potential solutions to these problems. It explains that a handful of lawmakers and

courts have moved in the right direction by relaxing the revocation formalities,

extending harmless error into this sphere, and achieving justice in particular cases

through the imposition of a constructive trust. Nevertheless, the Article also contends

that these curative measures do not go far enough. Accordingly, the Article proposes a

novel path forward: importing the revocation formalities from trust law. In sharp

distribute copies of this Article in any format at or below cost, for educational purposes, so

long as each copy identifies the author, provides a citation to the Notre Dame Law Review,

and includes this provision in the copyright notice.

* Martin Luther King, Jr.

Professor of Law, University of California, Davis, School

of Law.

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contrast to the straitjacket of wills doctrine, trust law both permits settlors to revoke their

trusts by any reasonable means and to create their own private revocatory rules. Thus,

extending this lenient approach into the realm of wills would minimize intent-defeating

outcomes, dovetail with broader trends in the field, and bring revocation law into the

twenty-first century.

INTRODUCTION .................................................................................... 564

I. MAKING WILLS ........................................................................... 573

A. Formalism’s Rise ............................................................. 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 Dignity ................................................................. 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 Formalities .............................................. 614

CONCLUSION ........................................................................................ 617

INTRODUCTION

Recently, an Illinois resident named Tyler Brewer decided to

revoke his will.

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.

But as the years passed, Brewer had

grown closer to Hannah and also fathered a son, Jourdan.

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

1 See Brewer v. Brewer (In re Estate of Brewer), 35 N.E.3d 149, 150 (Ill. App. Ct. 2015).

2 See Will of Tyler Brewer, at *1, *3–4 [hereinafter Brewer Will], Brewer v. Brewer (In

re Estate of Brewer), No. 2013 P 387 (Ill. Cir. Ct. filed Mar. 11, 2014), aff’d, 35 N.E. 3d 149

(on file with author).

3 See id.; Brewer, 35 N.E.3d at 150.

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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 [b]oth Hannah and Jourdan[.] TB.”

FIGURE 1: WILL OF TYLER BREWER

4 Brewer Will, supra note 2, at *1.

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* * *

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.

However, two years later, her marriage

deteriorated.

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!!!”

She then signed

and dated below the notation.

FIGURE 2: LAST WILL AND TESTAMENT OF JAIME D. MARKS

5 See Last Will and Testament of Jaime D. Marks at *1 [hereinafter Marks Will], In re

Estate of Kranz-Marks, No. 2019-6, 2020 N.Y. Slip Op. 50646(U) (Sur. Ct. Mar. 10, 2020)

(Westlaw) (on file with author); In re Estate of Kranz-Marks, No. 2019-6, 2020 N.Y. Slip Op.

50646(U), at *1 (Sur. Ct. Mar. 10, 2020) (Westlaw).

6 See Marks Will, supra note 5, at cover page (expressing Marks’s wish to disinherit

Morales).

7 Id.

8 Id.

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* * *

In 2016, Nadya Elis, who lived in Maryland, hired a lawyer to help

her cancel all her previous wills.

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.”

FIGURE 3: NADYA V. ELIS REVOCATION OF WILL

9 Kiknadze v. Elis, No. 1166, 2020 WL 4937994, at *1–2 (Md. Ct. Spec. App. Aug. 24,

2020).

10 Id. at *1–2.

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* * *

These cases highlight an important but 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.

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.

Traditionally, courts

demanded strict compliance with these rules, voiding would-be wills

for trivial errors, such as a misplaced signature,

witnesses who were

not in the same physical space when the testator acknowledged the

document,

or a stray typed word in a purported holograph.

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.

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”).

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

11 See Wills Act 1837, 7 Will. 4 & 1 Vict. c. 26 (Eng., Wales & Ir.).

12 See, e.g., A

RIZ. REV. STAT. ANN. § 14-2503 (2021); CAL. PROB. CODE § 6111(a) (West

2021); N.C. G

EN. STAT. § 31-3.4 (2021); TEX. EST. CODE ANN. § 256.154 (West 2021); VA.

CODE ANN. § 64.2-403 (2021); David Horton, Wills Law on the Ground, 62 UCLA L. REV. 1094,

1116 n.139 (2015) (collecting statutes).

13 See, e.g., In re Schiele’s Estate, 51 So. 2d 287, 290 (Fla. 1951).

14 See, e.g., In re Groffman [1969] 1 WLR 733 (P) at 739 (Eng.).

15 See, e.g., In re Thorn’s Estate, 192 P. 19, 22 (Cal. 1920).

16 See Ashbel G. Gulliver & Catherine J. Tilson, Classification of Gratuitous Transfers, 51

ALE L.J. 1, 5–9 (1941); Lon L. Fuller, Consideration and Form, 41 COLUM. L. REV. 799, 800

(1941).

17 See Gulliver & Tilson, supra note 16, at 5–13 (discussing the evidentiary, ritual, and

protective functions); Fuller, supra note 16, at 800–03 (referring to the evidentiary,

cautionary, and channeling functions). Although Gulliver and Tilson focused on the Wills

Act, Fuller largely concentrated on the contract doctrine of consideration. See Gulliver &

Tilson, supra note 16, at 5–13; Fuller, supra note 16, at 799–804.

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been made years, even decades past.”

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.”

But near the end of the twentieth century, a new cohort of

academics offered a more skeptical account of traditional will-

execution doctrine. Some of these critics argued that the Wills Act and

holograph statutes had not kept pace with the times.

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.

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.

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,”

“needless,”

and an “anachronism.”

Thus, “‘[d]own with formalism’ [became]

the rallying cry of probate reform.”

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.

In addition, since 2017, nine states have sought to bring will

18 John C.P. Goldberg & Robert H. Sitkoff, Torts and Estates: Remedying Wrongful

Interference with Inheritance, 65 S

TAN. L. REV. 335, 344 (2013) (quoting John H. Langbein,

Substantial Compliance with the Wills Act, 88 H

ARV. L. REV. 489, 492 (1975)).

19 Bruce H. Mann, Formalities and Formalism in the Uniform Probate Code, 142 U.

PA. L.

REV. 1033, 1036 (1994).

20 See, e.g., James Lindgren, Abolishing the Attestation Requirement for Wills, 68

N.C. L.

REV. 541, 557 (1990).

21 See, e.g., John H. Langbein, The Nonprobate Revolution and the Future of the Law of

Succession, 97 H

ARV. L. REV. 1108, 1108, 1113 (1984) (describing how contract-like

mechanisms were replacing wills as the primary estate planning tool).

22 See, e.g., Wehking v. Wehking, 516 P.2d 1018, 1020 (Kan. 1973) (“the validity of a

trust in personalty established by parol has long been recognized”).

23 Lindgren, supra note 20, at 542.

24 Langbein, supra note 18, at 489.

25 Id. at 496.

26 Mann, supra note 19, at 1033.

27 See U

NIF. PROB. CODE § 2-503 (UNIF. L. COMM’N 2019); RESTATEMENT (THIRD) OF

PROP.: WILLS & OTHER DONATIVE TRANSFERS § 3.3 (AM. L. INST. 1999); CAL. PROB. CODE

§ 6110(c)(2) (West 2021); COLO. REV. STAT. § 15-11-503 (2021); HAW. REV. STAT. § 560:2-

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making into the digital age by passing statutes that authorize electronic

wills.

These developments have inspired a vibrant new literature

about the future of estate planning.

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.

First, a testator can

perform a “revocatory act” by burning, canceling, tearing, or

obliterating the will with the intent to revoke it.

Second, a person

can rescind a will by executing a writing that satisfies the rules that

govern the making of a will.

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.

Surprisingly,

even though these “revocation formalities” are the mirror image of the

much-discussed execution formalities, academics have generally

ignored them.

503 (2021); MICH. COMP. LAWS § 700.2503 (2021); MONT. CODE ANN. § 72-2-523 (2021);

N.J.

STAT. ANN. § 3B:3-3 (West 2021); OHIO REV. CODE ANN. § 2107.24 (West 2021); S.D.

CODIFIED LAWS § 29A-2-503 (2021); UTAH CODE ANN. § 75-2-503 (West 2021); VA. CODE

ANN. § 64.2-404 (2021); cf. MINN. STAT. § 524.2-503 (2021) (enacting harmless error as part

of a temporary COVID-19 relief measure).

28 Five of these laws follow unique approaches to electronic will formalities. See A

RIZ.

REV. STAT. ANN. § 14-2518 (2021); FLA. STAT. § 732.522 (2021); IND. CODE § 29-1-21-4

(2021); M

D. CODE ANN., EST. & TRUSTS § 4-102 (West 2021); NEV. REV. STAT. § 133.085

(2019). Four have passed the Uniform Law Commission’s proposed Electronic Wills Act.

See U

NIF. ELEC. WILLS ACT (UNIF. L. COMM’N 2019) [hereinafter UEWA]; COLO. REV. STAT.

§ 15-11-1301 (2021); N.D. CENT. CODE § 30.1-37 (2021); UTAH CODE ANN. § 75-2-1405

(West 2021); W

ASH. REV. CODE §§ 11.12.400–11.12.491 (2021).

29 See, e.g., Natalie M. Banta, Electronic Wills and Digital Assets: Reassessing Formality in

the Digital Age, 71 B

AYLOR L. REV. 547 (2019); Bridget J. Crawford, Blockchain Wills, 95 IND.

L.J. 735 (2020); Bridget J. Crawford, Wills Formalities in the Twenty-First Century, 2019 WIS. L.

REV. 269; Adam J. Hirsch, Technology Adrift: In Search of A Role for Electronic Wills, 61 B.C. L.

REV. 827 (2020); David Horton, Wills Without Signatures, 99 B.U. L. REV. 1623, 1635 (2019);

David Horton, Partial Harmless Error for Wills: Evidence from California, 103 I

OWA L. REV. 2027

(2018); John H. Langbein, Absorbing South Australia’s Wills Act Dispensing Power in the United

States: Emulation, Resistance, Expansion, 38 A

DEL. L. REV. 1 (2017); Peter T. Wendel, Wills Act

Compliance and the Harmless Error Approach: Flawed Narrative Equals Flawed Analysis?, 95 O

L. REV. 337 (2017); Gökalp Y. Gürer, Note, No Paper? No Problem: Ushering in Electronic Wills

Through California’s “Harmless Error” Provision, 49 U.C.

DAVIS L. REV. 1955 (2016); Paige

Hall, Note, Welcoming E-Wills into the Mainstream: The Digital Communication of Testamentary

Intent, 20 N

EV. L.J. 339 (2019).

30 See Statute of Frauds 1677, 29 Car. 2 c. 3 (Eng.).

31 See id. § 6.

32 See id.

33 See Allen v. Huff, 9 Tenn. (1 Yer.) 404, 411 (1830).

34 One exception is Mark Glover, Formal Execution and Informal Revocation:

Manifestations of Probate’s Family Protection Policy, 34 O

KLA. CITY U. L. REV. 411 (2009). Glover

argues that the relative ease with which a testator can revoke a will by act “promotes

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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.”

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].”

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.

Finally, and even more perversely, Nadya Elis’s lawyer-drafted, signed,

witnessed, and notarized writing was nothing more than words on a

page.

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.”

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.

probate’s family-protection policy by channeling a decedent’s estate into intestacy.” Id. at

413 (footnote omitted) (citing J

ESSE DUKEMINIER, STANLEY M. JOHANSON, ROBERT H.

SITKOFF & JAMES LINDGREN, WILLS, TRUSTS & ESTATES (7th ed. 2005)). Conversely, this

Article focuses more on the difficulty of revoking a will: situations in which a testator almost

certainly intended to annul an instrument but failed to do so. Likewise, another piece on

revocation, Robert Whitman, Revocation and Revival: An Analysis of the 1990 Revision of the

Uniform Probate Code and Suggestions for the Future, 55 A

LB. L. REV. 1035 (1992), claims “that

relatively few cases presenting revocation . . . problems arise in the system.” Id. at 1036.

Although I agree that there is probably less litigation over revocation than the creation of

wills, the issue does generate a fair number of disputes. See infra Parts II–III.

35 Brewer v. Brewer (In re Estate of Brewer), 35 N.E.3d 149, 153 (Ill. App. Ct. 2015).

36 In re Estate of Kranz-Marks, No. 2019-6, 2020 N.Y. Slip Op. 50646(U), at *2 (Sur.

Ct. Mar. 10, 2020) (Westlaw).

37 See Brewer, 35 N.E.3d at 152–53 (declining to even consider whether Brewer revoked

his will by making a second will); Kranz-Marks, 2020 N.Y. Slip Op. 50646(U), at *2

(explaining that Marks’s handwritten passage failed to be a will because it “was not executed

with the formalities required by statute”).

38 See Kiknadze v. Elis, No. 1166, 2020 WL 4937994, at *5 (Md. Ct. Spec. App. Aug. 24,

2020).

39 Id. (quoting M

D. CODE ANN., EST. & TRUSTS § 4-105(b)(2) (West 2020) (previously

D. CODE ANN., EST. & TRUSTS § 4-105(2) (West 2019))).

40 See id.

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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.

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 instru-

ments 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.

Fourth, the Article evaluates potential cures for the pathologies of

revocation. It explains that a slim minority of courts and policymakers

have taken a step in the right direction by liberalizing revocation law.

For example, some judges have imposed a constructive trust on the

estate for the benefit of the individuals who would have inherited if the

revocation had been effective.

Likewise, the UPC loosens the rules

for revoking by act and extends harmless error to some failed

revocations.

The Article endorses these remedial measures, which,

unfortunately, have not been widely adopted. But the Article also

demonstrates that they contain gaping holes. Thus, the Article

proposes a novel solution: aligning will revocation law with the rules

that govern the revocation of a trust. The Article explains why this

change would reduce unfair outcomes, avoid difficult questions about

revoking electronic wills, and modernize the centuries-old will

revocation formalities.

A few words can clarify the scope of this Article. The revocation

of wills is a sprawling issue that intersects with several other complex

doctrines. However, the Article focuses on the oft-litigated issue of

41 See supra text accompanying notes 16–17.

42 See infra subsection II.B.4.

43 See infra Section IV.A.

44 See infra Section IV.B.

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how testators can voluntarily cancel wills in their entirety. As a result,

it excludes related topics, such as implied revocations triggered by

divorce,

partial revocations by act,

and the revival of revoked wills.

The Article contains four Parts. Part I sets the stage by describing

the debate over the execution formalities. It shows that although the

caselaw interpreting the Wills Act and holograph statutes is infamous

for its wooden rules and harsh results, this legacy of formalism has

started to wane. Part II then pivots to will revocation. It reveals that

the rules that govern this subject are confusing and counterintuitive.

Part III contends that the costs of these revocation formalities dwarf

the benefits. Indeed, some revocation requirements further vital poli-

cies, but others are baffling. Finally, Part IV analyzes existing attempts

to reform revocation law and ultimately suggests that lawmakers

borrow revocation rules from the field of trusts.

I. MAKING WILLS

To frame the issue of will revocation, it can be helpful to start with

an overview of will execution. This Part explains that the steps re-

quired to create a testamentary instrument have sparked decades of

controversy. It then reveals that the rigidity of traditional will-creation

law is slowly relaxing its grip.

A. Formalism’s Rise

The law of will execution has long been synonymous with “harsh

and relentless formalism.”

This section explains why.

Historically, three British statutes have dominated the will-making

process. First, in 1540, Parliament passed the Statute of Wills.

common law, land—the wellspring of economic power—could not be

45 In general, “[t]he dissolution of the testator’s marriage is a change in circumstance

that presumptively revokes any provision in the testator’s will in favor of his or her former

spouse.” R

ESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS § 4.1(b)

M. L. INST. 1999); see also Naomi R. Cahn, Revisiting Revocation upon Divorce?, 103 IOWA L.

REV. 1879, 1881 (2018) (criticizing this rule).

46 A partial revocation by act occurs when the testator tries to cancel a specific part of

the will rather than the entire instrument. See Note, Partial Revocation of Wills by Acts Done

to the Instrument, 23

HARV. L. REV. 558, 559 (1910). States disagree about the permissibility

of this practice. See, e.g., In re Estate of Menchel, No. 263251, 2006 N.Y. Slip Op. 50930(U),

at *2 (Sur. Ct. May 18, 2006) (Westlaw).

47 Revival comes into play when the testator makes Will 1, then revokes Will 1 by

making Will 2, and then revokes Will 2. See U

NIF. PROB. CODE § 2-509 (UNIF. L. COMM’N

2019). The question in revival cases is whether the testator intended to reinstitute Will 1 by

revoking Will 2. See id.

48 Langbein, supra note 18, at 489.

49 See Statute of Wills 1540, 32 Hen. 8 c. 1 (Eng.).

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devised,

and testators often disposed of personal property on their

deathbeds through oral “nuncupative” wills.

The Statute of Wills

changed these traditions by making real estate transmissible by

testamentary instrument so long as the owner memorialized her wishes

in writing.

Second, in 1677, lawmakers added a layer of formality by enacting

the Statute of Frauds.

A year earlier, the Great Fire had swept

through London, destroying property records and making “the effect

and even existence of wills . . . sources of dispute.”

Thus, section 5 of

the new law declared that wills transmitting land “shall be in [writing]

and signed by the [testator] . . . and shall be attested and subscribed in

the presence of the [testator] by three or [four] credible

[w]itnesses.”

These formalities distinguished wills from contracts

and gifts, which can sometimes be made orally and never need to be

attested by witnesses.

Third, in 1837, the Wills Act extended the rigorous execution

formalities to bequests of both real and personal property.

addition, the Wills Act reduced the number of required witnesses to

two but specified that these people must be “present at the same

[t]ime” when the testator either signed the document or

acknowledged her signature.

Both the Statute of Frauds and the

Wills Act eventually migrated to former British colonies, such as

Australia and the United States.

50 See 4 WILLIAM BLACKSTONE, COMMENTARIES *430; 1 HENRY SWINBURNE, A TREATISE

TESTAMENTS AND LAST WILLS pt. 1 §§ 12, 14, pt. 4 § 26 (7th ed., Dublin, Elizabeth Lynch

1793) (1590).

51 See 3 W.S.

HOLDSWORTH, A HISTORY OF ENGLISH LAW 539 (3d ed. 1923).

52 See Statute of Wills 1540 § 1.

53 Statute of Frauds 1677, 29 Car. 2 c. 3 (Eng.).

54 Philip Hamburger, The Conveyancing Purposes of the Statute of Frauds, 27 A

M. J. LEGAL

HIST. 354, 364–66 (1983).

55 Statute of Frauds 1677 § 5.

56 For example, the Statute of Frauds only covered specific kinds of agreements, such

as those that could not be fully performed within a year of their making. See Statute of

Frauds 1677 § 4. In addition, the law required these deals to be in writing and signed by

the party to be charged, but did not insist upon witness attestation. See id.

57 See Wills Act 1837, 7 Will. 4 & 1 Vict. c. 26 (Eng., Wales & Ir.)).

58 See id. § 9.

59 See, e.g., Waller v. Waller, 42 Va. (1 Gratt.) 454, 475 (1845) (noting that Virginia

had recently adopted the Wills Act);

LAW REFORM COMM. OF S. AUSTL., TWENTY-EIGHTH

REPORT OF THE LAW REFORM COMMITTEE OF SOUTH AUSTRALIA TO THE ATTORNEY-

ENERAL: RELATING TO THE REFORM OF THE LAW ON INTESTACY AND WILLS 10–12 (1974)

(analyzing the execution formalities in South Australia).

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In addition, about half of American states adopted holographic

will statutes.

Holographs, which have deep roots in civil law coun-

tries, are exempt from the Wills Act’s attestation requirement but must

be handwritten and signed by the testator.

The rationale for this

deviation from the Wills Act is that because each person’s penmanship

is distinctive, a decedent’s handwriting “assume[s] the role witnesses

normally serve[.]”

In the middle of the twentieth century, scholars who specialized

in private law became intrigued by the execution formalities. In 1941,

Ashbel Gulliver and Catherine Tilson (in one article) and Lon Fuller

(in another) critiqued the statute’s elements.

Gulliver and Tilson

began by noting that probate litigation takes place in an unusual

posture: because the testator will be dead, the court must discern her

intent through the haze of testimony from interested parties and

documents that may be very old.

Accordingly, Gulliver and Tilson

argued that the Wills Act’s writing and signature requirements serve

an “evidentiary” function: they ensure that a decedent’s wishes are

“cast in reliable and permanent form.”

In addition, Gulliver, Tilson, and Fuller observed that the

execution formalities reinforce the gravity of estate planning. Wills are

“ambulatory” and can be revoked at any time.

In turn, this power to

erase and revise creates a risk that testators will make rash decisions.

Thus, the three authors observed that the elaborate rites of the Wills

Act “act[] as a check against inconsiderate action.”

Gulliver and

60 See, e.g., ARIZ. REV. STAT. ANN. § 14-2503 (2021); CAL. PROB. CODE § 6111(a) (West

2021); N.C. G

EN. STAT. § 31-3.4 (2021); TEX. EST. CODE ANN. § 256.154 (West 2021); VA.

CODE ANN. § 64.2-403(B) (2021); Horton, supra note 12, at 1116 n.139 (collecting statutes).

61 See Reginald Parker, History of the Holograph Testament in the Civil Law, 3 J

URIST 1, 4–

5, 5–10, 28–31 (1943) (describing the evolution of holographs). States disagree about how

much of the instrument needs to be handwritten. See U

NIF. PROB. CODE § 2-502(b) & cmt.

NIF. L. COMM’N 2019) (“[A] holograph may be valid even though immaterial parts such

as date or introductory wording are printed, typed, or stamped.”); R

ESTATEMENT (THIRD)

OF PROP.: WILLS & OTHER DONATIVE TRANSFERS § 3.2 cmt. a (AM. L. INST. 1999) (describing

this jurisdictional split).

62 Stephen Clowney, In Their Own Hand: An Analysis of Holographic Wills and Homemade

Willmaking, 43 R

EAL PROP. TR. & EST. L.J. 27, 33 (2008); see Adams’ Ex’x v. Beaumont, 10

S.W.2d 1106, 1108 (Ky. 1928) (reasoning that every person “acquires a style of writing, a

certain mannerism in the formation of letters and words, absolutely peculiar to himself, and

which, almost without exception, renders his handwriting easily distinguishable from that

of others”).

63 See Gulliver & Tilson, supra note 16; Fuller, supra note 16.

64 See Gulliver & Tilson, supra note 16, at 6.

65 Id.

66 Alex M. Johnson, Jr., Is It Time for Irrevocable Wills?, 53 U.

LOUISVILLE L. REV. 393,

393 & n.4 (2016); see Cozzort v. Cunningham, 130 S.E.2d 171, 173 (Ga. Ct. App. 1963).

67 Fuller, supra note 16, at 800; Gulliver & Tilson, supra note 16, at 5.

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Tilson dubbed this the “ritual function,” while Fuller called it the

“cautionary function.”

Next, Gulliver and Tilson theorized that attestation by witnesses

once played a “protective” function by shielding testators from fraud

and undue influence.

However, they argued that this goal was no

longer relevant because although “wills were [once] usually executed

on the death bed,” they were now “probably executed by most testators

in the prime of life and in the presence of attorneys.”

Finally, Fuller mentioned what he called the “channeling

function.”

As he put it, the Wills Act elements “furnish[] a simple

and external test of enforceability” by standardizing the appearance of

testamentary instruments.

Indeed, when a judge sees a signed and

witnessed writing, she can be confident that it is a will.

But even though the execution formalities were socially valuable,

they also had a dark side. Courts adopted “[a] strict interpretation of

the Wills Act,”

citing minor deviations from its commands to nullify

documents that decedents “doubtless[ly] intended to be [their] last

will.”

People failed to create a will every time they forgot to sign the

instrument

or authenticated it in the wrong place,

or when a witness

could not see the decedent put pen to paper,

or when the witnesses

were not “present at the same time” when the testator gave her

approval to the document.

Judges also used an iron-handed

approach when assessing purported holographs. If someone type-

wrote, printed, or stamped a single word, she violated the axiom that

“a holographic will not entirely written by the testator cannot be

probated.”

68 See Gulliver & Tilson, supra note 16, at 5; Fuller, supra note 16, at 800, 814.

69 See Gulliver & Tilson, supra note 16, at 9–13.

70 Id. at 10.

71 Fuller, supra note 16, at 801–03.

72 Id. at 801.

73 See id.

74 Armenti v. Ryan, 186 A. 517, 517 (N.J. Dep’t of Lab., Workmen’s Comp. Bureau

1936).

75 In re Sage, 107 A. 445, 445 (N.J. 1919).

76 See, e.g., In re Hoyt, 303 So. 2d 189 (La. Ct. App. 1974); In re Estate of Glace, 196

A.2d 297, 300 (Pa. 1964).

77 See, e.g., In re Schiele’s Estate, 51 So. 2d 287, 290 (Fla. 1951).

78 See In re Mackay’s Will, 18 N.E. 433, 434 (N.Y. 1888); Krause v. Dodge (In re Krause’s

Estate), 117 P.2d 1, 2 (Cal. 1941).

79 In re Groffman [1969] 1 WLR 733 (P) at 739 (Eng.).

80 Maris v. Adams, 166 S.W. 475, 478 (Tex. Civ. App. 1914), modified, 213 S.W. 622

(Tex. Comm’n App. 1919); cf. In re Estate of Dobson, 708 P.2d 422, 424 (Wyo. 1985)

(refusing to enforce an attempted holograph that the decedent had handwritten which also

contained a third party’s notations because it was not “entirely in the handwriting of the

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In these ways, the fact that a decedent wanted a “document to be

his or her will has always been secondary to whether or not the

document complied with the statutory formalities.”

But as I discuss

next, this legacy has started to evolve.

B. Formalism’s Decline

Recently, the execution formalities have become embattled. As

this section explains, states have started to experiment with fresh

approaches to will creation.

In the late twentieth century, scholars became disenchanted with

orthodox will-creation doctrine. This shift stemmed, in part, from a

sea change in legal practice. In 1965, Norman F. Dacey’s How to Avoid

Probate! became a surprise best-seller and christened the “nonprobate

revolution”: a movement in which people went to great lengths to

avoid leaving property that was subject to court supervision after

death.

Pay-on-death accounts and revocable trusts became the core

of many estate plans.

Although these devices are “will substitutes”—

they allow owners to pass wealth after death—they do not need to

comply with the Wills Act or holograph statutes.

Instead, these

mechanisms are often governed by private formalities established by

financial firms that manage a decedent’s assets, such as banks or trust

companies.

In turn, these institutions generally insist that non-

probate transfers be written and signed, but not attested.

Thus,

testator” (citing WYO. STAT. ANN. § 2-55 (1957) (current version at WYO. STAT. ANN. § 2-6-

113 (West 2021)))).

81 Mann, supra note 19, at 1035.

82 Langbein, supra note 21, at 1108 (coining the phrase “nonprobate revolution”); see

ORMAN F. DACEY, HOW TO AVOID PROBATE! (HarperCollins 5th ed. 1993) (1965); Edwin

McDowell, Book Notes, N.Y.

TIMES (Mar. 7, 1990), http://www.nytimes.com/1990/03/07

/arts/book-notes-459190.html [https://perma.cc/D8RW-BG6E] (describing the wild

success of Dacey’s book).

83 Langbein, supra note 21, at 1109.

84 Id. (“In truth, will substitutes are simply ‘nonprobate wills’—‘wills’ that need not

comply with the Wills Act.”). To be clear, some courts did strike down purported trusts on

the grounds that they were “testamentary” and thus needed to obey the Wills Act. See, e.g.,

Betker v. Nalley, 140 F.2d 171, 173 (D.C. Cir. 1944). But those cases were soon overruled.

See, e.g., Farkas v. Williams, 125 N.E.2d 600, 605 (Ill. 1955) (refusing to find that “intended

trusts [were] invalid as attempted testamentary dispositions”).

85 See Lindgren, supra note 20, at 556 (explaining that “financial intermediaries have

developed these will substitutes as free-market competitors to the state-run probate

system”).

86 See id. at 557.

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critics like James Lindgren urged lawmakers to mirror this practice by

deleting the witnessing mandate from the Wills Act.

Similarly, in a forceful critique, John Langbein challenged the

judicial norm of requiring strict compliance with the Wills Act.

Langbein began by noting that there is nothing unusual about

subjecting the enforceability of a legal instrument to formal require-

ments.

After all, the fields of contracts and property also demand

that certain transfers be reduced to a signed writing or supported by

consideration.

But Langbein observed that these rules differed in

one critical way from wills law. Courts had carved out exceptions—for

instance, part performance and promissory estoppel—which

recognized that “when the purposes of the formal requirements are

proved to have been served, literal compliance with the formalities

themselves is no longer necessary.”

Conversely, wills doctrine alone

insisted “that any defect in compl[iance] . . . automatically and

inevitably voids the will.”

For these reasons, Langbein contended

that judges should interpret the Wills Act purposively, rather than

textually, and ask whether the goals of the formalities had been

satisfied.

But the most influential development began in an unlikely place.

In 1975, the South Australian Parliament adopted a novel statute that

allowed probate judges to forgive “technical failure[s] to comply with

the Wills Act” if they were “satisfied that [a] document does in fact

represent the last will and testament of the testator.”

Shortly

thereafter, Langbein abandoned his substantial compliance proposal

and endorsed the South Australia regime, which he called the

“harmless error rule.”

The 1990 revisions to the Uniform Probate

Code (UPC) and the Restatement (Second) of Property: Donative Transfers

87 See id. (“The main purpose of the attestation requirement is to protect the testator

against fraud, duress, and undue influence. Yet we know from experience with will

substitutes that witnessing isn’t necessary to prevent these harms.”).

88 See Langbein, supra note 18, at 489.

89 See id. at 498–99.

90 See id. at 498–99; see also Langbein, supra note 21, at 1133.

91 Langbein, supra note 18, at 499.

92 Id. at 498.

93 Id. at 516–26.

94 L

AW REFORM COMM. OF S. AUSTL., TWENTY-EIGHTH REPORT OF THE LAW REFORM

COMMITTEE OF SOUTH AUSTRALIA TO THE ATTORNEY-GENERAL: RELATING TO THE REFORM

OF THE LAW ON INTESTACY AND WILLS 10–11 (1974) (describing what became Wills Act

Amendment Act (No. 2) 1975 (S. Austl.) s 9 (Austl.), amending Wills Act 1936 (S. Austl.) s 12).

95 See John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A Report on

Australia’s Tranquil Revolution in Probate Law, 87 C

OLUM. L. REV. 1, 51 (1987).

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echoed Langbein’s call.

Since then, twelve U.S. jurisdictions have

given courts the discretion to validate writings that violate the

execution formalities if there is compelling proof that the decedent

intended to make a will:

Although a document or writing added upon a document was not

executed in compliance with [the Wills Act], the document or

writing is treated as if it had been executed in compliance with that

[Act] if the proponent of the document or writing establishes by

clear and convincing evidence that the decedent intended the

document or writing to constitute . . . the decedent’s will . . . .

Thus, the harmless error rule has become the “most significant change

in what constitutes a will since enactment of the Statute of Frauds.”

Finally, an equally momentous transformation is now underway:

the rise of electronic wills. Since 2017, Arizona,

Florida,

100

Indiana,

101

and Nevada

102

have adopted statutes that authorize wills in digital

formats.

103

These laws are the fruits of lobbying by legal services

96 See UNIF. PROB. CODE § 2-503 (UNIF. L. COMM’N 1990); RESTATEMENT (SECOND) OF

PROP.: DONATIVE TRANSFERS app. I items 3–4 (AM. LAW INST., Tentative Draft No. 13, 1990)

(expanding on 1989’s Tentative Draft No. 12).

97 U

NIF. PROB. CODE § 2-503; cf. RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER

DONATIVE TRANSFERS § 3.3 (AM. L. INST. 1999) (“A harmless error in executing a will may

be excused if the proponent establishes by clear and convincing evidence that the decedent

adopted the document as his or her will.”). Hawaii, Michigan, Montana, New Jersey,

Oregon, South Dakota, and Utah have adopted UPC section 2-503 verbatim. See H

AW. REV.

STAT. § 560:2-503 (2021); MICH. COMP. LAWS § 700.2503 (2021); MONT. CODE ANN. § 72-2-

523 (2021); N.J.

STAT. ANN. § 3B:3-3 (West 2021); OR. REV. STAT § 112.238 (2019); S.D.

CODIFIED LAWS § 29A-2-503 (2021); UTAH CODE ANN. § 75-2-503 (West 2021). In 2020,

Minnesota followed suit temporarily to facilitate will-making during the coronavirus

pandemic. See M

INN. STAT. § 524.2-503 (2021) (“This section applies to documents and

writings executed on or after March 13, 2020, but before February 15, 2021.”). Finally,

California, Colorado, Ohio, and Virginia have embraced “partial” harmless error statutes

that can only excuse failure to comply with some elements of the Wills Act (usually

attestation). See C

AL. PROB. CODE § 6110(c)(2) (West 2021); COLO. REV. STAT. § 15-11-503

(2021); O

HIO REV. CODE ANN. § 2107.24 (West 2021); VA. CODE ANN. § 64.2-404 (2021).

98 Mann, supra note 19, at 1035.

99 See A

RIZ. REV. STAT. ANN. § 14-2518 (2021).

100 See F

LA. STAT. § 732.522 (2021).

101 See IND. CODE § 29-1-21-4 (2021).

102 See N

EV. REV. STAT. § 133.085 (2019). In 2001, Nevada became the first state to

authorize electronic wills. See id.; David Horton, Tomorrow’s Inheritance: The Frontiers of Estate

Planning Formalism, 58 B.C.

L. REV. 539, 568 (2017). But “the software necessary to meet

the requirements of the statute ha[d] not yet been developed,” so it was almost never used.

Gerry W. Beyer & Claire G. Hargrove, Digital Wills: Has the Time Come for Wills to Join the

Digital Revolution?, 33 O

HIO N.U. L. REV. 865, 887 (2007).

103 In addition, courts have sometimes upheld electronic wills. See In re Estate of

Horton, 925 N.W.2d 207, 209 (Mich. Ct. App. 2018) (per curiam) (using the harmless error

rule to enforce a will written on cell phone); In re Estate of Castro, No. 2013ES00140, 2013

WL 12411558 (Ohio Ct. Com. Pl. June 19, 2013) (enforcing a will written with stylus and

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providers such as LegalZoom and Willing.com.

104

Their goal is to

create a market for supervising will execution over the internet and

then serving as “qualified custodians” who store the document for an

extra fee.

105

As a result, these “industry-drafted” statutes generally

make it easier to probate an e-will that has been lodged with a

custodian.

106

Conversely, in 2019, the Uniform Law Commission

promulgated a rival Uniform Electronic Wills Act (UEWA).

107

This

proposed law tries not to favor any “particular business model” and

thus does not mention qualified custodians.

108

As of the summer of

2021, Colorado, North Dakota, Utah, and Washington have adopted

the UEWA.

109

Thus, it may only be a matter of time before testators

routinely articulate their wishes in emails, text messages, and word

processing files.

* * *

To summarize, there has been a long and lively debate about will

creation. Although the execution formalities were once notorious for

thwarting a decedent’s intent, they have gradually become more

flexible. Nevertheless, as the next Part elucidates, the related topic of

will revocation has slipped through the cracks.

saved on tablet computer). As these cases reveal, in some states, a digital document may

qualify as a “writing” that is “signed” even without an electronic will statute. See Horton,

supra note 102, at 568–69.

104 See Hirsch, supra note 29, at 859 (discussing the lobbying efforts that have produced

some e-will statutes).

105 See Developments in the Law: More Data, More Problems, 131 H

ARV. L. REV. 1790, 1806

n.87 (2018).

106 Memorandum from Suzanne Brown Walsh, Chair, Unif. L. Comm’n, Turney P.

Berry, Vice Chair, Unif. L. Comm’n & Susan N. Gary, Reporter, Unif. L. Comm’n, to Unif.

L. Comm’n 3 (June 8, 2018), https://www.uniformlaws.org/HigherLogic/System

/DownloadDocumentFile.ashx?DocumentFileKey=442fc3a6-ba53-f1db-fce6-c52d81340e0c

&forceDialog=0 [https://perma.cc/5R93-LN82] (describing these laws as “industry-

drafted”). Three of the statutes encourage the use of qualified custodians by making wills

stored with such a person or entity “self-proving,” which means that a court can admit them

to probate without the need for the submission of evidence. See A

RIZ. REV. STAT. ANN. § 14-

2519(2) (2021); F

LA. STAT. §§ 732.503, 732.523 (2021); NEV. REV. STAT. § 133.086 (2019).

107 See UEWA, supra note 28.

108 Id. at 2. Instead, the UEWA permits testators to make e-wills self-proving by

including an affidavit sworn “before an officer authorized to administer oaths under law of

the state in which execution occurs.” Id. at 16.

109 See supra note 28.

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II. REVOKING WILLS

Unlike the Wills Act and holograph statutes, the rules for revoking

wills have lurked in relative obscurity. This Part gives them the

attention they deserve.

A. Early Law

The common law did not impose rigid mandates on the

revocation of wills.

110

Instead, the inquiry was fact-sensitive and

holistic. Judges asked whether there was “clear evidence of a positive

declaration of the intent to revoke.”

111

Testators could satisfy this

standard through oral statements or unsigned and unattested writ-

ings.

112

Even after Parliament began to solemnize the law of will

execution by passing the Statute of Wills in 1540, a testamentary

instrument that “must have been in writing . . . [could] have been

revoked by parol.”

113

But in 1676, the King’s Bench decided Cole v. Mordaunt—a case

that would transform the law of revocation.

114

The testator had

executed a written will making a large gift to charity.

115

His wife, who

was much younger, then alleged that he had orally revoked this

instrument on his deathbed and made a nuncupative will leaving his

entire estate to her.

116

Nine people claimed to have witnessed this

exchange.

117

Eventually, however, this testimony was exposed as per-

jury.

118

When the truth emerged, one of the judges, Lord Nottingham,

110 See WILLIAM HERBERT PAGE, A CONCISE TREATISE ON THE LAW OF WILLS 273 (1901)

(observing that “the form of the revoc[ation] . . . was immaterial”). This was a looser

standard than Roman law, which insisted that testators revoke wills that were less than ten

years old by performing “some act” that demonstrated their intent to revoke. W

ILLIAM L.

BURDICK, THE PRINCIPLES OF ROMAN LAW AND THEIR RELATION TO MODERN LAW 610–11

(1938).

111 Floyd v. Floyd, 34 S.C.L. (3 Strob.) 44, 55 (S.C. Ct. App. 1848).

112 See, e.g., Brook v. Warde (1572) 73 Eng. Rep. 702, 702–03; 3 Dyer 310 b, 310 b

(enforcing an oral revocation).

113 Ex parte Ilchester (1803) 32 Eng. Rep. 142, 145; 7 Ves. Jun. 348, 356; J

OHN R. ROOD,

A TREATISE ON THE LAW OF WILLS § 321, at 266 (2d ed. 1926) (noting that even after

Parliament began to formalize the law of will execution, “courts held parol revocations

sufficient”).

114 There is no record of the opinion in Cole. Instead, we know about the trial and its

aftermath from other sources. See Mathews v. Warner (1798) 31 Eng. Rep. 96, 107; 4 Ves.

Jun. 187, 211; Prince v. Hazleton, 20 Johns. 502, 512 (N.Y. 1822); R

OOD, supra note 113,

§ 218, at 171 n.5.

115 See Mathews, 31 Eng. Rep. at 107.

116 See id.

117 See id.

118 See id.

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declared: “I hope to see one day a law, that no written will should be

revoked but by writing.”

119

As luck would have it, Lord Nottingham was uniquely situated to

push the law in that direction. At the time he was presiding over Cole,

he was also drafting the Statute of Frauds.

120

In 1677, a year after Lord

Nottingham’s remarks, Parliament passed this legislation and

formalized the revocation of wills that devised land.

121

Specifically, the

Statute of Frauds established two paths for nullifying such a will. First,

testators could revoke by act by either “burning[,] cancelling [sic][,]

teareing [sic][,] or obliterating the [will]” or having someone else do

so in the testator’s presence.

122

This aspect of the statute codified

existing norms: although the common law did not require it, testators

often took one of these destructive steps to dispel any doubt about

their intent.

123

Second, Parliament mandated that a writing that

revoked a will needed to meet the formalities for being a will. As one

court eloquently put it, “[t]he evidence of revocation . . . must be of

dignity equal to the instrument revoked.”

124

I will borrow this phrase

and call the idea that it takes a will to revoke a will the “equal dignity

principle.”

In the early nineteenth century, American states adopted the

Statute of Frauds, and revocation cases took a strange turn.

125

Courts

faced a steady stream of lawsuits contending that a third party had

prevented the testator from destroying her will.

126

The typical claim

was that the testator had orally declared her intent to revoke, thrown

the document onto a fire, and not noticed when someone who

119 Id.

120 See Ash v. Abdy (1678) 36 Eng. Rep. 1014, 1014; 3 Swans. 664 app., 664 app.

(acknowledging Lord Nottingham’s role in drafting the Statute of Frauds); George P.

Costigan, Jr., The Date and Authorship of the Statute of Frauds, 26 H

ARV. L. REV. 329, 335 (1913)

(same).

121 Statute of Frauds 1677, 29 Car. 2 c. 3, § 6 (Eng.).

122 Id.

123 See L

AWRENCE W. WAGGONER, RICHARD V. WELLMAN, GREGORY S. ALEXANDER &

MARY LOUISE FELLOWS, FAMILY PROPERTY LAW 253 (1991) (“many people choose this

method of revoking their wills”).

124 Allen v. Jeter, 74 Tenn. 672, 674 (1881).

125 Some U.S. jurisdictions enacted the Statute of Frauds piecemeal, initially

embracing its provisions that governed the execution of wills but not those that applied to

revocation. See, e.g., Belden v. Carter, 4 Day 66, 68 (Conn. 1809); Clark’s Ex’rs v. Eborn, 6

N.C. (2 Mur.) 234, 235 (1813).

126 See In re Silva’s Estate, 145 P. 1015, 1016–17 (Cal. 1915); Runkle v. Gates, 11 Ind.

95, 99 (1858); Gains v. Gains, 9 Ky. (2 A.K. Marsh.) 190, 191 (1820); Graham v. Birch, 49

N.W. 697, 697–98 (Minn. 1891); Mundy v. Mundy, 15 N.J. Eq. 290, 291 (Prerog. Ct. 1858);

Hise v. Fincher, 32 N.C. (10 Ired.) 139, 140 (1849); Kent v. Mahaffey, 10 Ohio St. 204, 211

(1859); Clingan v. Mitcheltree, 31 Pa. 25, 26 (1856); Boyd v. Cook, 30 Va. (3 Leigh) 32, 55

(1831); cf. Doe v. Harris (1838) 112 Eng. Rep. 737, 740; 8 Ad. & E. 1, 2.

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benefitted from the instrument whisked it to safety.

127

Judges were

understandably skeptical. These allegations seemed to be manufac-

tured to justify the physical integrity of a document that the testator

supposedly meant to destroy. In addition, like Cole, they usually relied

entirely on the testimony of an interested party or one of their allies.

128

And here the new revocation formalities revealed their value.

Although courts once had to wade through a trial, the law now allowed

them to slam the courthouse door. In opinion after opinion, they held

that these fantastic events, even if true, did not satisfy the test for

revocation.

129

As the Supreme Court of Indiana declared in 1858, “a

testator’s intent to revoke [does] not, of itself, render his will

inoperative.”

130

But on the opposite side of the ledger, the Statute of Frauds

sometimes forced judges to ignore compelling evidence that a

decedent truly had intended to revoke. For instance, people

occasionally sent letters asking their attorneys to destroy a will that they

had left in the law office for safekeeping.

131

Under the equal dignity

rule, this correspondence was not a revocation by writing because it

was not attested.

132

And even if the lawyer complied with the request,

127 See Doe, 122 Eng. Rep. at 740 (testator “threw the will upon the fire” only to have

one of the beneficiaries “rescue[] it without his knowledge”); Graham, 49 N.W. at 697–98

(testator placed a will in an envelope in an unlit stove only to have the wrongdoer remove

the document from the envelope); cf. In re Silva’s Estate, 145 P. at 1016–17 (testator’s wife

“destroy[ed] an envelope” and lied by telling the testator “that the will was [e]nclosed

therein”); Runkle, 11 Ind. at 99 (testator’s son had falsely declared that he had burnt the

will); Gains, 9 Ky. at 191 (will was “snatched from [the testator’s] hand by the defendant in

error, and forcibly retained by him”); Mundy, 15 N.J. Eq. at 291 (testator’s wife convinced

him she had burnt will); Clingan, 31 Pa. at 26 (same); Hise, 32 N.C. at 141 (testator’s son

threw blank piece of paper on fire); Kent, 10 Ohio St. at 211 (same); Boyd, 30 Va. at 47, 50

(blind testator asked for his will to be destroyed).

128 See, e.g., Hise, 32 N.C. at 139–40 (case rested on a single witness’s testimony); Mundy,

15 N.J. Eq. at 291 (same); Runkle, 11 Ind. at 97 (allegations were supported by three

witnesses); Clingan, 31 Pa. at 37 (noting that “the channel of proof is through persons

pecuniarily interested in [the dispute]”).

129 See In re Silva’s Estate, 145 P. at 1017 (“The mere intent, unperformed, to destroy or

burn the will is not sufficient.”); accord Gains, 9 Ky. at 191; Graham, 49 N.W. at 698; Mundy,

15 N.J. Eq. at 292; Hise, 32 N.C. at 141; Kent, 10 Ohio St. at 218; Boyd, 30 Va. at 55.

130 Runkle, 11 Ind. at 99. Paradoxically, a few courts held that the testator had failed

to revoke but also employed a constructive trust to give the assets to the people who would

have inherited in the absence of the will. See, e.g., Brazil v. Silva, 185 P. 174, 176 (Cal. 1919),

disapproved of on other grounds by Ludwicki v. Guerin, 367 P.2d 415, 419 (Cal. 1961). But see

Kent, 10 Ohio St. at 220–22 (rejecting this position as an improper end-run around the

revocation formalities); Reiter v. Carroll, 198 S.W.2d 163, 166–68 (Ark. 1946) (collecting

cases).

131 See Harris v. McDonald, 108 S.E. 448, 453 (Ga. 1921); In re McGill’s Will, 128 N.E.

194, 194 (N.Y. 1920); c.f. Tynan v. Paschal, 27 Tex. 286, 289 (1863).

132 See Harris, 108 S.E. at 453 (holding that the testator’s letter failed to revoke her will

because it was not “executed with the same formality” as a will) (quoting G

A. CIV. CODE

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mutilating the will accomplished nothing, because a destructive act

must be performed in the testator’s presence.

133

Likewise, testators

often scrawled phrases such as “obsolete,”

134

“void,”

135

or “I revoke”

136

in the margins or on the backs of their wills. These bare notations were

not revocations by writing because they flunked the equal dignity test:

they were “never attested or subscribed by any witness, much less by

two witnesses.”

137

Also, most courts held that these words were not

revocations by act because they were “not written in such a way as to

have the effect of obliterating or canceling or destroying any words of

the will itself.”

138

Thus, the revocation formalities erected a tightrope

that not all testators could cross.

B. Modern Law

Revocation law shifted again in the nineteenth century, when the

Wills Act replaced the Statute of Frauds as the field’s centerpiece. The

Wills Act applied its revocation rules across the board to all wills—not

just to those that devised land.

139

It also changed the list of permissible

revocatory acts by dropping “cancelling” and “obliterating” and

adding “otherwise destroying.”

140

Only some American states followed

suit.

141

Finally, as time passed, courts added their own layer of

§ 3918 (current version at GA. CODE ANN. § 53-4-43 (2021))). In addition, testators did not

intend the letter itself to operate as a revocation; rather, they simply meant to arm their

lawyers with the “power to destroy.” Tynan, 27 Tex. at 295; McGill’s Will, 128 N.E. at 196

(rejecting the argument that the testator “intended that the act of signing the paper [to

be] . . . a complete revocation of her will”).

133 See Tynan, 27 Tex. at 295 (opining that if the lawyer had “acted upon the instruction

contained in the letter, and destroyed the will, . . . it would not operate as a destruction”).

For a modern decision involving a testator who called her lawyer and asked him to discard

her will, see Harrison v. Bird, 621 So. 2d 972, 973 (Ala. 1993) (observing that “Ms. Speer’s

will was not lawfully revoked when it was destroyed by her attorney at her direction and with

her consent, but not in her presence”).

134 Lewis v. Lewis, 2 Watts & Serg. 455, 455–56 (Pa. 1841).

135 Howard v. Hunter, 41 S.E. 638, 638 (Ga. 1902); In re Shelton’s Will, 55 S.E. 705, 706

(N.C. 1906).

136 In re Akers’ Will, 77 N.Y.S. 643, 644 (N.Y. App. Div. 1902), aff’d, 66 N.E. 1103 (N.Y.

1903); In re Ladd, 18 N.W. 734, 735 (Wis. 1884).

137 Ladd, 18 N.W. at 735; see also Lewis, 2 Watts & Serg. at 457.

138 Howard, 41 S.E. at 638; see Shelton’s Will, 55 S.E. at 706 (“The words written on the

blank margin of this will do not touch any part of the will proper.”); In re Miller’s Estate,

100 N.Y.S. 344, 346 (Sur. Ct. 1906) (“Not a word of this will was erased, crossed out, marked

over, or in any manner obliterated . . . .”); Ladd, 18 N.W. at 739 (explaining that words of

cancellation must appear “upon the face of the instrument itself, and not upon some

remote corner of the same sheet”).

139 See Wills Act 1837, 7 Will. 4 & 1 Vict. c. 26, § 20 (Eng., Wales & Ir.).

140 Compare id. with Statute of Frauds 1677, 29 Car. 2 c. 3 § 6. (Eng.)

141 See infra text accompanying note 148.

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revocation formalities. Thus, as this section explains, contemporary

revocation doctrine has become exceedingly complex.

1. Revoking by Act

Although states uniformly permit testators to revoke by act, they

differ on what kind of conduct suffices. Most have merged the Statute

of Frauds and the Wills Act by authorizing burning, canceling, tearing,

obliterating, and destroying.

142

But there are many subtle variations.

Some jurisdictions omit particular acts

143

and others add “defacing,”

144

“cutting,”

145

or “mutilat[ing].”

146

Furthermore, three sub-rules have become increasingly important

in this niche. First, courts distinguish between revocatory acts per-

formed on original wills and those inflicted on mere copies. Because

it can be useful to have more than one version of an instrument,

lawyers once created “duplicate originals”: multiple wills with ink

142 See, e.g., ALA. CODE § 43-8-136(b) (2021); ALASKA STAT. § 13.12.507(a)(2) (2021);

RK. CODE ANN. § 28-25-109(a)(2) (2021); CAL. PROB. CODE § 6120(b) (West 2021); COLO.

REV. STAT. § 15-11-507(1)(b) (2021); HAW. REV. STAT. § 560:2-507(a)(2) (2021); IDAHO

CODE § 15-2-507(b) (2021); KAN. STAT. ANN. § 59-611 (2021); MASS. GEN. LAWS ch. 190B,

§ 2-507(a)(2) (2021); M

E. STAT. tit. 18-C, § 2-506(1)(B) (2021); MICH. COMP. LAWS

§ 700.2507(1)(b) (2021); M

INN. STAT. § 524.2-507(a)(2) (2021); MO. REV. STAT. § 474.400

(2021); M

ONT. CODE ANN. § 72-2-527(1)(b) (2021); NEV. REV. STAT. § 133.120(1)(a)

(2019); N.H.

REV. STAT. ANN. § 551:13(I) (2021); N.J. STAT. ANN. § 3B:3-13(b) (West 2021);

N.M.

STAT. ANN. § 45-2-507(A)(3) (2021); N.C. GEN. STAT. § 31-5.1(2) (2021); N.D. CENT.

CODE § 30.1-08-07(1)(b) (2021); OKLA. STAT. tit. 84, § 101(2) (2021); OR. REV. STAT.

§ 112.285(2) (2019); 20 P

A. CONS. STAT. § 2505(3) (2021); S.C. CODE ANN. § 62-2-506(a)(2)

(2021); S.D.

CODIFIED LAWS § 29A-2-507(a)(2) (2021); TENN. CODE ANN. § 32-1-201(3)

(2021); UTAH CODE ANN. § 75-2-507(1)(b) (West 2021); VA. CODE ANN. § 64.2-410(A)

(2021); V

T. STAT. ANN. tit. 14, § 11(a)(B)(2) (2021); WASH. REV. CODE. § 11.12.040(1)(b)

(2021); W

IS. STAT. § 853.11(1m) (2021); WYO. STAT. ANN. § 2-6-117(a)(ii) (2021).

143 Because “destroying” did not appear in the Statute of Frauds, it is also absent from

several revocation statutes. See A

RIZ. REV. STAT. ANN. § 14-2507(A)(2) (2021); CONN. GEN.

STAT. § 45a-257 (2021); D.C. CODE § 18-109(a)(2) (2021); 755 ILL. COMP. STAT. 5/4-7

(2021); M

D. CODE ANN., EST. & TRUSTS § 4-105(b)(2) (West 2021); cf. OHIO REV. CODE

ANN. § 2107.33(A) (West 2021) (omitting “burning”); DEL. CODE ANN. tit. 12, § 208 (2021)

(only permitting “canceling”); T

EX. EST. CODE ANN. § 253.002 (West 2021) (“destroying or

canceling”); M

ISS. CODE. ANN. § 91-5-3 (2021) (“destroying, canceling, or obliterating”);

33 R.I.

GEN. LAWS § 33-5-10 (2021) (“burning, tearing, or otherwise destroying”); IOWA

CODE § 633.284 (2021) (allowing wills to be “canceled or destroyed” but adding that a

cancellation “must be witnessed in the same manner as the making of a new will”).

144 F

LA. STAT. § 732.506 (2021).

145 K

Y. REV. STAT. ANN. § 394.080(3) (West 2021); W. VA. CODE § 41-1-7 (2021).

146 N.Y.

EST. POWERS & TRUSTS LAW § 3-4.1(a)(2)(A) (McKinney 2021) (“other

mutilation”); I

ND. CODE § 29-1-5-6 (2021) (“destroy[ing] or mutilat[ing]” the will).

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signatures.

147

In the nineteenth century, courts held that duplicate

originals are “performative,” meaning that revoking one is sufficient

even if other duplicate originals remain.

148

But as office technology

evolved, attorneys began to rely on conformed copies (typewritten

transcriptions of legal instruments) and carbon copies (impressions of

a document made on a kind of tissue paper).

149

Eventually, the Xerox

machine made it even easier to reproduce testamentary instruments.

150

The prevalence of these duplicate non-original wills raised a novel

question: were copies performative, too?

In 1945, the Wisconsin Supreme Court held that only originals

can be revoked in In re Wehr‘s Will.

151

William Wehr signed a will that

gave his assets to his siblings, left the original with his lawyer, and kept

a conformed copy.

152

William then married Alberta.

153

Under the law

at the time, Alberta was not entitled to a share of William’s estate as an

accidentally omitted spouse, and the will effectively disinherited her.

154

147 See, e.g., Gushwa v. Hunt (In re Estate of Gushwa), 168 P.3d 147, 152 (N.M. Ct. App.

2007), aff’d in part, rev’d in part, 197 P.3d 1, 5–7 (N.M. 2008) (differentiating between

duplicate originals and copies).

148 See, e.g., Crossman v. Crossman, 95 N.Y. 145, 150 (1884) (“As each contains the will

of the testator, a revocation of either is a revocation of his will, and thus revokes both.”).

The law generally remains unchanged today. See, e.g., In re Estate of Fowler v. Perry, 681

N.E.2d 739, 742 (Ind. Ct. App. 1997) (“A duplicate will does not survive revocation of the

original.”); C

AL. PROB. CODE § 6121 (West 2021) (“A will executed in duplicate . . . is

revoked if one of the duplicates is burned, torn, canceled, obliterated, or destroyed, with

the intent and for the purpose of revoking it . . . .”); I

DAHO CODE § 15-2-507(c) (2021)

(“The revocation of a will executed in duplicate may be accomplished by revoking one (1)

of the duplicates.”). But cf. Estate of Koester v. First Mid-Ill. Bank & Tr., 975 N.E.2d 1115,

1125 (Ill. App. Ct. 2012) (“[I]f a testator has possession of both duplicate original wills and

burns only one of them, the surviving duplicate original will has not been revoked”

(emphasis omitted)).

149 See, e.g., In re Karcher’s Estate, 16 N.Y.S.2d 577, 578 (Sur. Ct. 1939) (involving the

execution of an original will and a conformed copy); Conformed Copy, BLACK’S LAW

DICTIONARY (9th ed. 2009) (defining a “conformed copy” as “[a]n exact copy of a

document bearing written explanations of things that were not or could not be copied, such

as a note on the document indicating that it was signed by a person whose signature appears

on the original”); Julia Lawlor, Carbon Paper Still Messy, Still in Use, N.Y. TIMES (Nov. 12,

1998), https://www.nytimes.com/1998/11/12/technology/carbon-paper-still-messy-still-

in-use.html [https://perma.cc/6PAQ-TRNA] (discussing the rise and fall of carbon paper).

150 See Kate O’Connell, Happy Birthday, Copy Machine! Happy Birthday, Copy Machine!,

NPR (Oct. 23, 2013), https://www.npr.org/2013/10/23/239241106/happy-birthday-copy-

machine-happy-birthday-copy-machine [https://perma.cc/7LQY-D3AC] (describing the

emergence of the commercial photocopier).

151 Wehr v. Wehr (In re Wehr’s Will), 18 N.W.2d 709 (Wis. 1945).

152 See id. at 710, 715.

153 See id. at 710.

154 See id. at 714–15. Today, a spouse who marries a testator after the execution of the

will is generally entitled to a share of the estate. See, e.g., UNIF. PROB. CODE § 2-301(a)

(UNIF. L. COMM’N 2019).

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Nevertheless, after William passed away, the conformed copy of the will

was found in his desk with its signature torn out.

155

Alberta argued that

because William did not possess the original, his destruction of the

copy should serve as a revocation.

156

The court disagreed, refusing to

allow what it called “a symbolic revocation,” and reasoning that

treating copies as performative would open the door to fraud.

157

Since

Wehr, courts have uniformly held that “a revocatory act performed on

a mere []copy is legally ineffective.”

158

I will call this the “copy rule.”

Second, revocation statutes continue to restrict revocations by

third parties. Most states mandate that other people perform a revoca-

tory act “in the testator’s presence and by the testator’s direction.”

159

155 See Wehr, 18 N.W.2d at 715.

156 See id.

157 See id. (“There is no proof that the desk was locked or that the papers were not

open to numerous other persons.”). The court also cited the text of the revocation statute,

which requires testators to deface a “will,” rather than a copy. Id. (quoting WIS. STAT.

§ 238.14 (1943) (current version at WIS. STAT. § 853.11(1m) (2021)).

158 Gushwa v. Hunt (In re Estate of Gushwa), 197 P.3d 1, 6 (N.M. 2008); In re

D’Agostino’s Will, 75 A.2d 913, 915 (N.J. Super. Ct. App. Div. 1950) (citing Wehr to hold

that a revocation failed when the destroyed writing was “a conformed or unexecuted copy

rather than a duplicate”); Brewer v. Brewer (In re Estate of Brewer), 35 N.E.3d 149, 153 (Ill.

App. Ct. 2015) (“[A] revocatory act performed on any photocopy is legally ineffective.”); In

re Krieger, 595 N.Y.S.2d 272, 272 (N.Y. App. Div. 1993) (“[A] will cannot be revoked by the

physical destruction of an unexecuted conformed copy . . . .”); In re Estate of Charitou, 595

N.Y.S.2d 308, 311 (Sur. Ct. 1993) (“Objectants [sic] have not cited, nor has the court found,

a single decision in which the court permitted revocation by physical act to take place other

than upon the testamentary instrument itself.”); Gassmann v. Stanton (In re Estate of

Stanton), 472 N.W.2d 741, 747 (N.D. 1991) (“[T]he destruction of an unexecuted or

conformed copy is ineffectual as an act of revocation regardless of the testator’s intent.”);

cf. In re Estate of Tolin, 622 So. 2d 988, 990–91 (Fla. 1993) (holding that “the testator’s

destruction of a copy of a codicil is not an effective revocation of the codicil” but fixing the

testator’s mistake using the equitable remedy of constructive trust); Lauermann v. Superior

Ct., 26 Cal. Rptr. 3d 258, 262 (Cal. Ct. App. 2005) (holding that the phrase “duplicate

original” does not include a photocopy (quoting C

AL. PROB. CODE § 6124 (West 1991)

(current version at C

AL. PROB. CODE § 6124 (West 2021)))).

159 A

RK. CODE ANN. § 28-25-109(a)(2) (2021); CAL. PROB. CODE § 6120(b)(2) (West

2021); C

OLO. REV. STAT. § 15-11-507(1)(b) (2021) (requiring “conscious” presence);

ONN. GEN. STAT. § 45a-257 (2021) (skipping “and”); DEL. CODE ANN. tit. 12, § 208 (2021)

(requiring “express” direction); D.C.

CODE § 18-109(a)(2) (2021) (using pronouns for the

testator and requiring “express direction and consent”); F

LA. STAT. § 732.506 (2021) (“by”

replaced with “at”); 755 I

LL. COMP. STAT. 5/4-7(a)(2) (2021) (using pronouns for the

testator and requiring “direction and consent”); K

AN. STAT. ANN. § 59-611 (2021) (skipping

“and” and using pronouns); K

Y. REV. STAT. ANN. § 394.080(3) (West 2021) (using

pronouns); M

D. CODE ANN., EST. & TRUSTS § 4-105(b)(2) (West 2020) (requiring “express

direction and consent”);

MISS. CODE ANN. § 91-5-3 (2021) (saying “in his or her presence,

or by subsequent will, codicil, or declaration, in writing, made and executed”); M

O. REV.

STAT. § 474.400 (2021) (using pronouns and requiring “consent and direction”); NEV. REV.

STAT. § 133.120(1)(a) (2019) (using “in the presence and at the direction of the testator”);

N.H.

REV. STAT. ANN. § 551:13(I) (2021) (switching the phrases’ order and using “consent”

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A handful of legislatures have imposed additional elements, such as

requiring that third party revocations be authorized by the testator in

writing

160

or overseen by two witnesses.

161

At the opposite pole, about

a dozen jurisdictions have slightly softened this rule by permitting the

revocatory act to occur in the testator’s “conscious presence,”

162

which

can be anywhere within the testator’s zone of sight or hearing.

163

Third, when a will was last in the testator’s possession but cannot

be found after her death, courts assume that she revoked it.

164

The

instead of “direction”); N.C. GEN. STAT. § 31-5.1(2) (2021); OKLA. STAT. tit. 84, § 101(2)

(2021) (using pronouns); 33 R.I.

GEN. LAWS § 33-5-10 (2021) (using pronouns); S.C. CODE

ANN. § 62-2-506(a)(2) (2021); TENN. CODE ANN. § 32-1-201(3) (2021); TEX. EST. CODE

ANN. § 253.002 (West 2021) (using “causing it to be destroyed or canceled in the testator’s

presence”); V

A. CODE ANN. § 64.2-410(A) (2021) (using pronouns and switching the

phrases’ order); V

T. STAT. ANN. tit. 14, § 11(a)(1)(B) (2021) (requiring “conscious

presence”); W.

VA. CODE § 41-1-7 (2021) (using pronouns); WYO. STAT. ANN. § 2-6-

117(a)(ii) (2021) (using pronouns); cf. I

OWA CODE § 633.284 (2021) (not permitting

revocation by third parties under any circumstances); L

A. CIV. CODE ANN. art. 1607(1)

(2021) (not imposing a presence requirement).

160 See O

HIO REV. CODE ANN. § 2107.33(A)(3) (West 2021).

161 See ALA. CODE § 43-8-136(b) (2021) (“If the physical act is by someone other than

the testator, consent and direction of the testator must be proved by at least two witnesses.”);

R. REV. STAT. § 112.285(2) (2019) (same effect); 20 PA. CONS. STAT. § 2505(3) (2021)

(same effect); W

ASH. REV. CODE § 11.12.040(1)(b) (2021) (same effect); N.Y. EST. POWERS

& TRUSTS LAW § 3-4.1(a)(2)(A)(ii) (McKinney 2021) (same and also requiring that neither

of the witnesses “shall be the person who performed the act of revocation”).

162 COLO. REV. STAT. § 15-11-507(b) (2021); HAW. REV. STAT. § 560:2-507(a)(2)

(2021); M

ASS. GEN. LAWS ch. 190B, § 2-507(a)(2) (2021); ME. STAT. tit. 18-C, § 2-506(1)(B)

(2021); M

ICH. COMP. LAWS § 700.2507(1)(b) (2021); MINN. STAT. § 524.2-507(a)(2)

(2021); M

ONT. CODE ANN. § 72-2-527(1)(b) (2021); N.J. STAT. ANN. § 3B:3-13(b) (West

2021); N.M.

STAT. ANN. § 45-2-507(A)(3) (2021); N.D. CENT. CODE § 30.1-08-07(1)(b)

(2021);

S.D. CODIFIED LAWS § 29A-2-507(a)(2) (2021); UTAH CODE ANN. § 75-2-507(1)(b)

(West 2021); W

IS. STAT. § 853.11(1m) (2021).

163 See, e.g., Lehman v. Tracy (In re Tracy’s Estate), 182 P.2d 336, 336–37 (Cal. Dist. Ct.

App. 1947) (holding that testator revoked will by asking third parties to act in an adjoining

room that was within earshot); Whitacre v. Crowe, 972 N.E.2d 659, 664 (Ohio Ct. App.

2012) (defining “conscious presence,” O

HIO REV. CODE ANN. § 2107.03 (West 2010), to

encompass conduct that occurs “in the testator’s range of vision or that the testator [can]

hear and understand”).

164 See, e.g., Frakes v. Thieme (In re Estate of Frakes), 146 N.E.3d 801, 810–11 (Ill. App.

Ct. 2020) (“[I]t has long been established, where a last will and testament, after its

execution, is retained in the exclusive control of the decedent and upon his or her death

cannot be found, a presumption arises that the decedent destroyed the will . . . .”); Golini

v. Bolton (In re Estate of Arant), 482 S.E.2d 784, 788 (S.C. Ct. App. 1997) (“If the testator

was known to have her last will in her possession or had ready access to it, and it cannot be

found on her death, it is presumed, rebuttably, that she destroyed it and thereby revoked

it.”); cf. Kitta v. Geringer (In re Estate of Mecello), 633 N.W.2d 892, 902 (Neb. 2001)

(declining to apply the presumption when “a person other than [the testator] who would

benefit from the revocation of the 1996 will had access to the box which [the testator] had

stated contained her will”).

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logic behind this so-called “presumption of animo revocandi”

165

is that

a testamentary instrument that disappears was more likely destroyed

than misplaced:

Persons in general keep their wills in places of safety, or, as we here

technically express it, “among their papers of moment and

concern.” . . . [I]f the instrument be not found in the repositories

of the testator, where he had placed it, the common sense of the

matter, prima facie, is that he himself destroyed it, meaning to

revoke it.

166

However, the proponent of a will can demonstrate otherwise through

“statements [by] the decedent [that she] did not intend to revoke the

will, and evidence of other individual[s’] access to the will prior to

death.”

167

If the presumption is rebutted, a court can admit a copy of

the will to probate as proof of the terms of the original.

168

2. Revoking by Writing

There are two basic approaches to written revocations. First, many

states boast “broad” revocation statutes. These laws allow testators to

rescind a testamentary instrument by creating either “a subsequent

will” or a “writing” that is technically not a will but is “executed with

the same formalities required for the execution of wills.”

169

Second, a

165 See, e.g., Nordahl v. Jensen (In re Estate of Blikre), 934 N.W.2d 867, 872 (N.D. 2019).

166 In re Estate of Hartman, 563 P.2d 569, 571 (Mont. 1977) (quoting Colvin v. Fraser

(1829) 162 Eng. Rep. 856, 877; 2 Hagg. Ecc. 266, 326); see also Feder v. Nation of Israel, 830

S.W.2d 449, 452 (Mo. Ct. App. 1992) (“A will is universally recognized as a sacred document.

When the testator desires to dispose of his assets according to his will, a certain degree of

care and caution in its preservation, is required.”).

167 Frakes, 146 N.E.3d at 811. Some states hold that evidence must be “clear,

satisfactory and convincing” to rebut the presumption. In re Davis’ Will, 11 A.2d 233, 236

(N.J. 1940); accord Easley v. Ferguson (In re Estate of Cannon), 733 So. 2d 245, 248 (Miss.

1999); Briscoe v. Schneider (In re Estate of Penne), 775 P.2d 925, 927 (Or. Ct. App. 1989).

In other jurisdictions, the standard is a mere preponderance. See, e.g., In re Estate of Glover,

744 S.W.2d 939, 940 (Tex. 1988).

168 See, e.g., In re Estate of Richard, 556 A.2d 1091, 1092 (Me. 1989) (affirming a

probate court ruling that had “allowed the copy in place of the original ‘to carry out the

will (wishes and desires) of the deceased’”); W.W.

THORNTON, A MONOGRAPH ON THE LAW

LOST WILLS § 58 (Chicago, Callaghan & Co. 1890) (discussing the practice of judges

validating “a draft[] or a duplicate” when the presumption is rebutted).

169 FLA. STAT. § 732.505(2) (2021); see also DEL. CODE ANN. tit. 12, § 208 (2021); D.C.

CODE § 18-109(a)(1) (2021); GA. CODE ANN. § 53-4-42(b) (2021); 755 ILL. COMP. STAT.

ANN. 5/4-7 (2021); IND. CODE § 29-1-5-6 (2021); KAN. STAT. ANN. § 59-611 (2021); KY. REV.

STAT. ANN. § 394.080(1)–(2) (West 2021); LA. CIV. CODE ANN. art. 1607(2) (2021); MISS.

CODE. ANN. § 91-5-3 (2021); N.Y. EST. POWERS & TRUSTS LAW § 3-4.1(a)(1)(B) (McKinney

2021); N.C. GEN. STAT. § 31-5.1(1) (2021); OHIO REV. CODE ANN. § 2107.33(4)–(5) (West

2021); OKLA. STAT. tit. 84, § 101(1) (2021); 20 PA. CONS. STAT. § 2505 (2021); 33 R.I. GEN.

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handful of jurisdictions have “narrow” revocation legislation. They

limit written revocations to full-fledged “will[s] which revoke[] the

prior will.”

170

The difference between these regimes rears its head when a

testator attempts to execute what I call an “anti-will”: a writing that

satisfies the execution formalities but merely tries to override a

previous will. Anti-wills differ from conventional wills in two ways.

First, according to some definitions, a will must bequeath the testator’s

property.

171

But anti-wills do not convey assets to anyone.

172

Second,

wills only kick in after the testator dies, but anti-wills purport to take

effect upon execution.

173

It would be hard to exaggerate the confusion that anti-wills have

engendered. Recall that broad statutes allow revocations by a

“subsequent will” and a “writing” executed with the formalities of a

will.

174

Thus, these laws permit revocation by a document that does not

meet the technical definition of a “will.”

175

Indeed, courts in jurisdic-

tions with broad statutes have enforced revocations by writings

“incapable of operating as a will,”

176

such as a “blank form of a will with

some of the spaces filled in,”

177

a questionnaire used to prepare for a

meeting with an estate planner,

178

and a contract between divorcing

LAWS § 33-5-10 (2021); TENN. CODE ANN. § 32-1-201(1)–(2) (2021); TEX. EST. CODE ANN.

§ 253.002 (West 2021); VA. CODE ANN. § 64.2-410(B) (2021); W. VA. CODE § 41-1-7 (2021).

170 ALA. CODE § 43-8-136(a) (2021); see also ALASKA STAT. § 13.12.507(a)(1) (2021);

RIZ. REV. STAT. ANN. § 14-2507 (2021); ARK. CODE ANN. § 28-25-109 (2021); CONN. GEN.

STAT. § 45a-257 (2021); HAW. REV. STAT. § 560:2-507 (2021); IDAHO CODE § 15-2-507

(2021);

IOWA CODE ANN. § 633.284 (2021); MD. CODE ANN., EST. & TRUSTS § 4-105 (West

2021); M

ASS. GEN. LAWS ch. 190B, § 2-507 (2021); ME. STAT. tit. 18-C, § 2-506 (2021); MICH.

COMP. LAWS § 700.2507 (2021); MINN. STAT. § 524.2-507 (2021); MONT. CODE ANN. § 72-2-

527 (2021); N.J.

STAT. ANN. § 3B:3-13 (West 2021); NEV. REV. STAT. § 133.120 (2019); N.D.

CENT. CODE § 30.1-08-07 (2021); OR. REV. STAT. § 112.285 (2019); S.C. CODE ANN. § 62-2-

506 (2021); S.D.

CODIFIED LAWS § 29A-2-507 (2021); UTAH CODE ANN. § 75-2-507 (West

2021); V

T. STAT. ANN. tit. 14, § 11 (2021); WASH. REV. CODE § 11.12.040 (2021); WIS. STAT.

§ 853.11 (2021); WYO. STAT. ANN. § 2-6-117 (2021).

171 See, e.g., Holmden v. Craig, 31 Ohio Cir. Dec. 461, 467 (1909) (“[A] will always

disposes of property.”), aff’d, 94 N.E. 1108 (Ohio 1910) (per curiam); In re Sherman’s

Estate, 3 Pa. D. & C.2d 677, 680 (Pa. Orphans’ Ct. 1955) (holding that a document was not

a will where “[t]here is no disposition of property anywhere in the paper”).

172 See, e.g., Kiknadze v. Elis, No. 1166, 2020 WL 4937994, at *5 (Md. Ct. Spec. App.

Aug. 24, 2020).

173 See, e.g., Brown v. Brown, 21 So. 3d 1, 6 (Ala. Civ. App. 2009).

174 See supra text accompanying note 169 (emphasis added).

175 These non-wills are sometimes called “nontestamentary writings.” See 79 A

M. JUR.

2D Wills § 468, Westlaw (database updated Aug. 2021).

176 In re Estate of Stege, 293 N.Y.S. 856, 866 (Sur. Ct. 1937).

177 Id. at 860.

178 In re Estate of Diana, No. 98 CA 104, 1999 WL 436732, at *1 (Ohio Ct. App. June

21, 1999).

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spouses.

179

In fact, in holographic states, testators can revoke by

handwriting simple notations such as “cancelled,”

180

“revoke[d],”

181

“null and void”

182

on their will and signing or initialing below.

FIGURE 4: LAST WILL AND TESTAMENT OF HOWARD L. ANDERSEN

183

Conversely, courts in states with narrow revocation statutes are

divided about the permissibility of anti-wills. Although these laws

require a “will” to revoke a will, some courts have opined that the

legislature did not use this word “in its technical sense,” but rather

merely meant “a writing executed with the solemnity of a will.”

184

179 Dunsworth v. Dunsworth, 81 P.2d 9, 15 (Kan. 1938).

180 McCarthy v. Bank of Cal. (In re Estate of Langan), 668 P.2d 481, 482 (Or. Ct. App.

1983).

181 Rogers v. Andersen (In re Estate of Andersen), No. B194657, 2008 WL 116430, at

*1 (Cal. Ct. App. Jan. 14, 2008).

182 In re Kehr’s Estate, 95 A.2d 647, 648 (Pa. 1953).

183 Appellant’s Opening Brief at Exhibit 31 p. 1, In re Estate of Andersen, 2008 WL

116430 (No. B194657), 2007 WL 2273771 at *63.

184 In re Peirce’s Estate, 115 P. 835, 837 (Wash. 1911); see also In re Heazle’s Estate, 240

P.2d 821, 822–23 (Idaho 1952) (rejecting the argument that a document that “makes no

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However, other judges read the revocation statute literally and disallow

anti-wills.

185

For instance, in Brown v. Brown, R.B. Brown executed a

will in 1957.

186

In 2006, Brown signed a writing that declared his intent

to “revoke all last wills and testaments heretofore made by me; it being

my intention and desire to die without a will.”

187

An Alabama appellate

court held that Brown’s attempt to make an anti-will did not comply

with the state’s narrow revocation statute because it was not a “will”:

By its terms, the revocation document was intended to take effect

immediately, not upon the death of the decedent. Moreover, the

revocation document did not determine the disposition of the

decedent’s property after his death. Because the revocation

document is not a “subsequent will,” we conclude that that

document did not meet the statutory requirements to revoke the

1957 will.

188

Thus, Brown’s purported anti-will accomplished nothing.

189

3. Revoking by Cancellation

The revocatory method of “cancellation” has also proven to be

problematic. Attempted cancellations can take two forms. First, the

testator might draw lines through the language of the will. Cases

involving this method are relatively simple: they hinge on “whether the

evidence sustains the conclusion that the cancellation was done by the

testator with the intent and purpose of revoking . . . the will.”

190

But

disposition of property and appoints no representative and is uncertain and indefinite . . .

fails as a will and therefore also fails as a revocation”).

185 See, e.g., Kiknadze v. Elis, No. 1166, 2020 WL 4937994, at *5 (Md. Ct. Spec. App.

Aug. 24, 2020) (refusing to enforce attempted anti-will). Two recent cases in this camp

come from New Mexico. See, e.g., Gushwa v. Hunt (In re Estate of Gushwa), 197 P.3d 1, 3

(N.M. 2008) (“[O]ur Probate Code, unlike that of other states, does not allow for

revocation of a will by any ‘other writing.’” (citing N.M. S

TAT. ANN. § 45-2-507(A)(1) (1993)

(current version at N.M. S

TAT. ANN. § 45-2-507(A)(1) (2021)))); Sanchez v. Martinez (In re

Estate of Martinez), 985 P.2d 1230, 1232 (N.M. Ct. App. 1999) (reasoning that the

revocation statute “contains no provision that permits a testator to revoke a will by

execution of a nontestamentary document”). When they were decided, the state’s

revocation statute “require[d] revocation by a subsequent will” and did not allow revocation

“by ‘any other writing.’” Gushwa, 197 P.3d at 4. However, the legislature later amended

the law to authorize revocation “by executing another subsequent document” that complies

with the execution formalities. 2011 N.M. Laws ch. 124 § 23; N.M. STAT. ANN. § 45-2-

507(A)(2) (2021). Thus, these opinions are no longer good law.

186 21 So. 3d 1, 2 (Ala. Civ. App. 2009).

187 Id. The opinion does not say whether the writing was attested. However, the fact

that the court treated it as an anti-will suggests that it met the execution formalities.

188 Id. at 6.

189 See id.

190 Train v. Sherer (In re Martens’ Estate), 74 P.2d 238, 239 (Cal. 1937).

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second, a testator might write words of cancellation, such as “void,” on

the will. This technique has spawned “much . . . litigation.”

191

Unfortunately, words of cancellation straddle the boundary

between revocation by act and revocation by writing. On the one hand,

words of cancellation might be an attempt to annul an instrument by

defacing it—a slightly more elaborate version of crossing out its text.

Seen this way, scrawling something like “I revoke” should, in fact,

revoke the will, just like tearing it, burning it, or drawing a large “X”

would. But on the other hand, it is equally possible to conceptualize

words of cancellation as an attempt to make an anti-will. To be valid

under the equal dignity principle, words of cancellation would thus

need to satisfy the execution formalities.

Most jurisdictions distinguish between these options by examin-

ing whether the words of cancellation touch the language of the will.

If the writing intersects with the instrument’s text, courts deem it to be

a revocation by the act of cancellation. As the Georgia Supreme Court

explained in 1902, “if any material part of the will is obliterated or

marked, or words indicating an intention to revoke written across the

same, . . . the instrument will be said to have been revoked.”

192

Alternatively, when words of cancellation occupy a blank part of the

will, judges treat them as an attempt to revoke by anti-will.

193

In turn,

this move is usually fatal to the testator’s intent because words of

cancellation are rarely signed by witnesses.

194

191 RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS § 4.1 cmt.

g (A

M. L. INST. 1999).

192 Howard v. Hunter, 41 S.E. 638, 638 (Ga. 1902); see also Note, Wills—Revocation by

Cancellation, 31 Y

ALE L.J. 892, 893 (1922) (“[A] writing upon the back or margin of a will

has been held not to be a revocation within the contemplation of the statute, upon the

theory that no material part of the will has been cancelled.”).

193 See, e.g., Dowling v. Gilliland, 122 N.E. 70, 72 (Ill. 1919) (“It could not be said that

a will is canceled in the slighest [sic] degree by reason of marks or scratches made upon

blank places on the will.”); Yont v. Eads, 57 N.E.2d 531, 532 (Mass. 1944) (“[T]he prevailing

view requires some defacement of the words of the will.”); In re Danielly’s Estate, 81 A.2d

519, 520 (N.J. Camden County Ct. 1951) (“The great weight of authority is to the effect that

the mere writing upon a will which does not in any wise physically obliterate or cancel the

same is insufficient to work a revocation of the will even though the writing may express an

intention to revoke.”); In re Akers’ Will, 77 N.Y.S. 643, 646 (N.Y. App. Div. 1902), aff’d, 66

N.E. 1103 (N.Y. 1903) (“There can be no such thing as a cancellation of an instrument,

either as a physical fact or as a legal inference, unless the instrument itself is in some form

defaced or obliterated.”); Lewis v. Lewis, 2 Watts & Serg. 455, 457 (Pa. 1841) (“It cannot be

pretended that writing the word ‘obsolete’ [in the margins] can be considered as a burning,

cancelling, obliterating or destroying the will.”); Thompson v. Royall, 175 S.E. 748, 750 (Va.

1934) (“[R]evocation of a will by cancellation . . . contemplates marks or lines across the

written parts of the instrument, or a physical defacement, or some mutilation of the writing

itself, with the intent to revoke.”).

194 See, e.g., Taft v. Zack, 830 So. 2d 881, 882–83 (Fla. Dist. Ct. App. 2002) (determining

that testator did not revoke will when she lined out the name of her husband and wrote the

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4. Revoking Electronic Wills

As noted, digital wills are likely to become a major force in estate

planning.

195

However, as this section explains, prescribing revocation

formalities for e-wills has proven to be challenging.

Defining how a testator can revoke an e-will by act is a mind-

bending problem. Some of the conduct listed in the revocation

statutes, such a burning and tearing the document, does not apply to

digital files. This issue is so thorny that the authors of the UEWA

seriously “considered not permitting revocation by physical act” and

only relented because “many people would assume that they could

revoke their wills by deleting them.”

196

Ultimately, the UEWA chose to

blandly announce that digital wills can be voided by “a physical act,” if

the testator’s intent to revoke can be established by a preponderance

of the evidence.

197

The comments to the model law elaborate that

revocatory conduct “could include deleting a file with the click of a

mouse or smashing a flash drive with a hammer.”

198

In a testament to the difficulty of regulating revocation of e-wills

by act, each industry-drafted statute offers its own take on the issue.

Arizona weaves digital wills into its general revocation statute by stating

that the testator or another person in the testator’s presence and by

the testator’s direction may perform a “‘revocatory act on the will,’

[which] includes burning, tearing, canceling, obliterating, rendering

word “void” and her initials next to the makings); Yont, 57 N.E.2d at 532 (“Failing as a

cancellation, the writing had no revocatory effect because it was not ‘signed, attested and

subscribed in the same manner as a will’ as required by the statute.”); Akers’ Will, 77 N.Y.S.

at 647 (“Where a will is sought to be revoked solely by writing, it must conform in that

respect to the requirement of the statute; and, failing in that, it does not revoke the will,

even though there may be a clear intention so to do.”); Lewis, 2 Watts & Serg. at 458 (“[T]his

was not a revocation for want of a signing by the testator.”); Thompson, 175 S.E. at 750 (“The

attempted revocation is ineffectual, because testatrix intended to revoke her will by

subsequent writings not executed as required by statute . . . .”); In re Ladd, 18 N.W. 734,

734–35 (Wis. 1884) (refusing to enforce attempted revocation when wrote “I revoke this

will” on blank page and added her signature because the words were “never attested or

subscribed by any witness, much less by two witnesses”).

195 See supra text accompanying notes 99–109.

196 Memorandum from Suzanne Brown Walsh, Chair, Unif. L. Comm’n, Turney P.

Berry, Vice Chair, Unif. L. Comm’n, & Susan N. Gary, Reporter, Unif. L. Comm’n, to Unif.

L. Comm’n 2 (May 30, 2019) (available at https://www.uniformlaws.org/HigherLogic

/System/DownloadDocumentFile.ashx?DocumentFileKey=134c0ae2-a0ae-2752-1497-

f47d8c1d9d75&forceDialog=0 [https://perma.cc/Q3JN-LBKK]).

197 UEWA, supra note 28, § 7(b)(2); N.D. CENT. CODE § 30.1-37-05(2)(b) (2021);

TAH CODE ANN. § 75-2-1407(2)(b) (West 2021); WASH. REV. CODE §§ 11.12.400–11.12.491

( 2021); cf. C

OLO. REV. STAT. § 15-12-1507(2)(b) (2020) (requiring clear and convincing

evidence for revocations by act) (repealed 2021).

198 UEWA, supra note 28, § 7 cmt. (Physical Act Revocation).

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unreadable or destroying the will.”

199

Florida sets a high bar for proving

revocation, declaring that an e-will “is revoked by the testator, or some

other person in the testator’s presence and at the testator’s direction,

by deleting, canceling, rendering unreadable, or obliterating [the

will] . . . as proved by clear and convincing evidence.”

200

Indiana

provides that a testator who is not storing an e-will with a custodian can

revoke “by permanently deleting each copy of the electronic record

associated with the electronic will in the testator’s possession or control

or by rendering the electronic record for the associated electronic will

unreadable and nonretrievable.”

201

Finally, Nevada specifies that

“[a]n electronic will may only be revoked by: . . . [c]ancelling [sic],

rendering unreadable or obliterating the will with the intention of

revoking it, by . . . [t]he testator or a person in the presence and at the

direction of the testator.”

202

Thus, although these laws share the

common thread of authorizing revocation by making files

“unreadable,” they also diverge on topics like whether to recognize

revocation by cancellation and the appropriate standard of proof.

Digital will legislation is more uniform on the subject of

revocation by writing. Each statute preserves the equal dignity

principle by decreeing that a testator can only invalidate an electronic

will “[b]y executing a subsequent will.”

203

Yet some laws also import

the equal dignity principle into a new context. Recall that industry-

drafted laws encourage testators to store their wills with qualified

custodians.

204

Thus, testators who use these services cannot revoke

their digital wills themselves. In turn, this raises questions about the

degree of formality that should be required when a client

communicates her desire to revoke to a custodian. On the one hand,

it seems perverse to insist that a testator execute a solemn document

just to set the wheels of revocation in motion. But on the other hand,

traditional law has never let third parties revoke a will outside of the

testator’s presence,

205

and permitting custodians to honor informal

expressions of intent might open the door to fraud. Thus, in Arizona

and Nevada, a custodian is only bound by a directive to revoke that is

199 ARIZ. REV. STAT. ANN. § 14-2507(A)(2) (2021) (emphasis added). Conversely,

Maryland’s e-will statute does not mention revocation at all. See H.B. 1261, 2021 Leg., Reg.

Sess. (Md. 2021).

200 F

LA. STAT. § 732.506 (2021).

201 I

ND. CODE § 29-1-21-8(c) (2021).

202 N

EV. REV. STAT. § 133.120(2) (2019).

203 A

RIZ. REV. STAT. ANN. § 14-2507(A)(1) (2021); see also FLA. STAT. § 732.505(2)

(2021); I

ND. CODE § 29-1-21-8(b) (2021); NEV. REV. STAT. § 133.120(2)(a) (2019); UTAH

CODE ANN. § 75-2-1407(2)(a) (West 2021); UEWA, supra note 28, at § 7(b)(1).

204 See supra text accompanying notes 105–106.

205 See supra text accompanying notes 159–163.

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embodied “in a writing executed with the same formalities required

for the execution of an electronic will.”

206

* * *

From the copy rule to electronic will statutes, the American legal

system makes it surprisingly difficult to revoke a will. This next Part

argues that this hidden pocket of formalism is problematic.

III.

CRITIQUING THE REVOCATION FORMALITIES

Although scholars have catalogued the advantages and drawbacks

of the Wills Act and holograph laws,

207

the revocation formalities have

largely escaped notice. This Part takes up the gauntlet. It reveals that

some revocation requirements serve important goals, but many do not.

Even worse, these bright line rules routinely thwart a testator’s intent.

A. The Copy Rule

Arguably, the copy rule advances each of the four functions of

formalities.

208

First, it plays an evidentiary role. As noted, reproduc-

tions of wills are pervasive.

209

Indeed, “[a] testator may make several

photocopies of his or her will, perhaps to send to relatives or other

beneficiaries, or to retain for the purpose of drafting possible

changes.”

210

Thus, as a New York probate judge reasoned, treating

these copies as potentially revocable would sow confusion about the

testator’s intent:

[I]n cases where the executed original, but not all of the

photocopies, can be found after decedent’s death, it might be

206 ARIZ. REV. STAT. ANN. § 14-2522(C) (2021); see also NEV. REV. STAT. § 133.330(2)(e)

(2019). Conversely, Indiana merely requires testators to inform these entities “in writing.”

ND. CODE § 29-1-21-8(e) (2021).

207 See supra text accompanying notes 16–26.

208 Judges have also grounded the copy rule in the text of revocation statutes. These

laws usually authorize revocation by “burning, tearing, canceling, obliterating, or

destroying the will.” U

NIF. PROB. CODE § 2-507 (UNIF. L. COMM’N 2019) (emphasis added).

In turn, the italicized words demonstrate that “the document destroyed must be the

original.” In re Estate of Tolin, 622 So. 2d 988, 990 (Fla. 1993); see also Gushwa v. Hunt (In

re Estate of Gushwa), 197 P.3d 1, 6 (N.M. 2008) (“[O]ur Probate Code mandates that a

revocatory act be performed ‘on the will.’”) (quoting N.M.

STAT. ANN. § 45-2-507(A)(2)

(1993) (current version at N.M.

STAT. ANN. § 45-2-507(A)(3) (2021)); Wehr v. Wehr (In re

Wehr’s Will), 18 N.W.2d 709, 715 (Wis. 1945) (“There is no room in the language of [the

revocation statute] for construction broad enough to include a copy of the will.”); see also

supra text accompanying note 158. Because my goal is to persuade lawmakers to amend

their revocation legislation, I will not dwell on this issue.

209 See supra text accompanying notes 147–50.

210 Lauermann v. Superior Ct., 26 Cal. Rptr. 3d 258, 261–62 (Cal. Ct. App. 2005).

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contended that one or more of the photocopies had been

destroyed by decedent with the intention to revoke the will. Of

course, in all of these cases, the party whose testamentary intentions

are at stake and whose acts are in question is the maker of the will

whose lips have been sealed for eternity.

211

Second, the copy rule seems consistent with the ritual function. A

photocopy is usually a pale substitute for the thick paper and “wet”

signatures of the real thing.

212

Accordingly, there is a plausible

argument that deeming copies to be performative would not “impress

upon the mind of the testator the solemnity of the occasion.”

213

Third,

the copy rule can be justified on protective grounds. Because people

usually keep their original will in a safe place, it is easier for wrongdoers

to obtain a copy. By making these stray documents irrelevant, the copy

rule limits the risk of fraud.

214

Fourth, the copy rule has a channeling

dimension. It conserves judicial resources by making revocation cases

pivot on the clear-cut issue of the physical appearance of a single

document.

215

But these benefits come at a hefty price. Under the copy rule, it

does not matter how emphatically the testator defaced the document,

how potent the evidence is of her intent, or even whether she was

simply following her lawyer’s instructions. One decedent took his

counsel’s advice and “wrote ‘Revoked’ on each page of th[e] copy.”

216

Another crossed out the copy’s text, wrote that “[t]he Will . . . is void,”

211 In re Estate of Charitou, 595 N.Y.S.2d 308, 311 (Sur. Ct. 1993); see also Gushwa, 197

P.3d at 6 (“Photocopies can be readily produced and the existence of multiple copies of a

will can engender confusion, especially when the issue is whether the will has been validly

revoked.”).

212 See Lauermann, 26 Cal. Rptr. 3d at 262 (“[N]ot only are photocopies ubiquitous,

but the simplicity of their creation stands in stark contrast to the considerable formalities

surrounding the execution of a will.”).

213 Charitou, 595 N.Y.S.2d at 310 (quoting Coffed v. Waley (In re Estate of Coffed), 387

N.E.2d 1209, 1211 (N.Y. 1979)).

214 For instance, as an Oklahoma appellate court observed, originals are tamper-

resistant in a way that copies are not:

[A]n individual, using common office computers, scanners, and software, could

create an unauthorized will, scan and reproduce an authentic signature from

another document, and merge the authentic signature and the bogus document.

After making a photocopy of the bogus document, the final result would be

indistinguishable from a photocopy of an authentic document. . . . [T]he

statutory requirement of an original signature on reproduced documents would

serve as a safeguard against such an acts [sic].

Goodwin v. Goodwin (In re Estate of Goodwin), 18 P.3d 373, 376 n.3 (Okla. Civ. App. 2000).

215 See In re Estate of Sullivan, 868 N.W.2d 750, 753 (Minn. Ct. App. 2015) (reasoning

that the copy rule helps “avoid substantial litigation based on potentially fraudulent

changes on photocopies”).

216 Gushwa, 197 P.3d at 2.

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and added both her initials and a signature.

217

And yet another went

to even greater lengths after scheduling a meeting with her estate

planner:

Prior to the appointment, decedent had written the word “Void” at

the top of the first page of the photocopy. During the meeting with

counsel, decedent wrote the word “Cancelled” across the first page

of the photocopy under which notation she wrote the date and her

initials. Decedent then cut her signature out of the second page of

the photocopy. The latter two acts were performed in the presence

of decedent’s niece, her husband, and two attorneys.

218

None of these attempted revocations survived the copy rule.

219

B. Presence

“Presence” has long been one of the most divisive elements of the

Wills Act. In most states, the testator must sign or acknowledge her

will before two witnesses who are present at the same time.

220

Commentators have criticized this formality’s potential for generating

cases in which one witness looked away at the key moment or left “the

room to powder her nose before the other has completed signing.”

221

Yet there are plausible evidentiary, ritual, and protective justifications

for this aspect of the statute. As the California Supreme Court

reasoned, by making the testator’s acknowledgement of the will “quasi

public” and “solemn,” there is “less likelihood [of] fraud . . . and more

likelihood of an accurate memory.”

222

Conversely, the rationale for the rule that a third party must

revoke a will in the testator’s presence is less well-articulated. Some

courts have gestured towards the idea that it plays the same evidentiary

217 Sullivan, 868 N.W.2d at 751 (first alteration in original).

218 Charitou, 595 N.Y.S.2d at 309; cf. Gassman v. Stanton (In re Estate of Stanton), 472

N.W.2d 741, 746–47 (N.D. 1991) (featuring a testator who crumpled a certified copy of the

will that a third party presented to him and then threw it away).

219 See Gushwa, 197 P.3d at 6–7; Sullivan, 868 N.W.2d at 753; Charitou, 595 N.Y.S.2d at

311–12. Admittedly, Gushwa remanded the matter for the trial court to consider whether

to impose a constructive trust on the assets for the benefit of the people who would inherit

had the will been revoked. See Gushwa, 197 P.3d at 7. I discuss this remedy below in Section

IV.A.

220 See supra text accompanying note 59.

221 John H. Langbein, Major Reforms of the Property Restatement and the Uniform Probate

Code: Reformation, Harmless Error, and Nonprobate Transfers, 38 ACTEC L.J. 1, 9 (2012).

222 In re Emart’s Estate, 165 P. 707, 708 (Cal. 1917); C

OMM’RS APPOINTED TO INQUIRE

INTO THE

L. OF ENG. RESPECTING REAL PROP., COPY OF THE FOURTH REPORT MADE TO HIS

MAJESTY BY THE COMMISSIONERS APPOINTED TO INQUIRE INTO THE LAW OF ENGLAND

RESPECTING REAL PROPERTY, 1833, HC, at 18 (remarking that “if the transaction must be

witnessed by both witnesses at one time, they must then agree in the same story, and perjury

will be more easily detected by cross-examination”).

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role as the Wills Act’s presence formality.

223

But that is not persuasive.

In the execution context, simultaneous presence helps sear the event

into the witness’ minds, “thus enabling them to testify with greater

assurance that the will was intended to be operative.”

224

But insisting

that a third party revoke near the testator does not generate proof of

anything. Indeed, by the time of any trial, the testator will be deceased

and thus unable to testify.

Another view is that presence deters unintentional or counterfeit

revocations.

225

For instance, in Estate of Haugk, the Wisconsin Supreme

Court refused to enforce a revocation that happened outside of the

testator’s presence.

226

Marie Haugk, who was married to Horst Haugk,

hired a lawyer to update her will.

227

Shortly after Marie met with the

estate planner, but before she had signed the new will, she asked Horst

to go to the incinerator in the basement of their building and burn her

old will.

228

Because Marie’s heart condition prevented her from

walking up or down stairs, she remained behind in their apartment.

229

The court opined that deeming the will to be void would open the

door to mistakes and wrongdoing:

The requirement that a will must be destroyed in the “testator’s

presence” must be strictly construed. This strict construction is

necessary so as to prevent the inadvertent or more importantly the

fraudulent destruction of a will contrary to the testator’s intentions.

Each element recited in the revocation statute must be established

by adequate evidence as this court will not adopt a position that will

promote either intestacy or the fraudulent destruction of an

individual’s last will and testament.

230

But this logic also rings hollow. Demanding that a third party

revoke in the testator’s presence is not necessary to prevent the

“inadvertent or . . . fraudulent destruction of a will.”

231

Revocation law

patrols this border through a different formality: the requirement that

223 See, e.g., Reiter v. Carroll, 198 S.W.2d 163, 165 (Ark. 1946) (reasoning that the

revocation formalities are designed to bar false oral testimony); Campbell v. Griefen (In re

Mitchell’s Estate), 27 N.E.2d 606, 609 (Ill. App. Ct. 1940) (implying that the revocation

formalities serve the same purposes as the execution formalities); In re McGill’s Will, 128

N.E. 194, 196 (N.Y. 1920) (same).

224 Gulliver & Tilson, supra note 16, at 8–9.

225 See Mitchell’s Estate, 27 N.E.2d at 609 (“All the authorities declare that the object of

the law is to prevent fraud and imposition upon the testator or the substitution of a

surreptitious will . . . .”) (quoting Walker v. Walker, 174 N.E. 541, 543 (Ill. 1930)).

226

See Lutheran Child.’s Friend Soc’y v. Haugk (In re Estate of Haugk), 280 N.W.2d

684, 690–91 (Wis. 1979).

227

Id. at 685–86.

228

Id. at 686.

229

Id.

230

Id. at 690.

231

Id.

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a third party revoke “at the testator’s direction.”

232

If a clumsy person

drops a will into the sea or a wrongdoer annihilates the document in

secret, there has been no revocation. The reason for this sensible

outcome is simple: the testator never “direct[ed]” the individual to

revoke. It does not matter whether these acts take place inches from

the testator or miles away.

The best explanation for the presence doctrine in the revocation

setting is ritual. As the Kentucky Supreme Court put it, the rule

“induce[s] care and deliberation.”

233

Indeed, forcing testators to

personally experience the destruction of the will might jolt them into

pondering the consequences of their choice. And it is possible that

they might be moved to reconsider their intent to revoke upon seeing

the lit blowtorch or the scissors hovering over the page.

Nevertheless, this meager virtue pales to the vices of the presence

requirement. Just as with the Wills Act and witnesses, testators and

parties to whom they have delegated the task of revocation are often

in the wrong place at the wrong time.

234

Surprisingly, many of these

cases involve people who ask their lawyers to revoke.

235

Consider Estate

of Boote.

236

Joseph Boote executed a codicil to his will that included his

232

Id. at 687; see also, e.g., Stainback v. West (In re Arbuckle’s Estate), 220 P.2d 950, 953

(Cal. Dist. Ct. App. 1950) (determining that a will was not revoked when the testator’ lawyer

destroyed it “in the absence of decedent, without her direction and without her knowledge

or consent”).

233 Miller v. Harrell, 194 S.W. 782, 785 (Ky. 1917).

234 See, e.g., In re Estate of Bancker, 232 So. 2d 431, 431 (Fla. Dist. Ct. App. 1970)

(refusing to find revocation when decedent’s family “went into another room, removed the

will from a wall safe and destroyed it by tearing it into pieces and flushing them down a

toilet”); Gross v. Gross (In re Estate of Gross), 144 So. 2d 861, 861 (Fla. Dist. Ct. App. 1962)

(holding that no revocation occurred when “[t]he original of the will was destroyed in

Birmingham, Alabama, by a person acting at the direction of the testator who was then in

Miami, Florida”); Miller, 194 S.W. at 785 (concluding that a third party’s destruction of the

will outside of the presence of the testator was ineffective even though the testator later

ratified the decision); In re Hughes’ Will, 114 N.Y.S. 929, 929 (Sur. Ct. 1908) (finding that

will remained valid when third parties mutilated the will outside of the testator’s presence);

Dower v. Seeds, 28 W. Va. 113, 138 (1886) (deciding that there was no revocation when the

will “was not burned in the room, where [the testator] was or had been, but in a different

room, in which no one was”).

235 See In re Estate of O’Donnell, 803 S.W.2d 530, 532 (Ark. 1991) (lawyer ripped the

will “into two pieces pursuant to the decedent’s directions which came over the

telephone”), overruled on other grounds by Edmundson v. Estate of Fountain, 189 S.W.3d 427

(Ark. 2004); Campbell v. Griefen (In re Mitchell’s Estate), 27 N.E.2d 606, 607 (Ill. App. Ct.

1940) (featuring a lawyer who threw away the testator’s will after receiving a letter from her

asking him to destroy it); In re Estate of Kraus, 385 N.Y.S.2d 933, 934 (Sur. Ct. 1976) (same);

cf. Harrison v. Bird, 621 So. 2d 972, 973 (Ala. 1993) (lawyer failed to revoke when he tore

will in his office not in the presence of the testator, but because he mailed the pieces to her

and they could not be found at her death, they were presumed revoked).

236 In re Estate of Boote, 198 S.W.3d 699 (Tenn. Ct. App. 2005).

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new wife in addition to his kids.

237

His family learned about his choice

and began to squabble.

238

As a result, Joseph visited his counsel and

asked him to destroy the codicil.

239

The attorney explained that he

would need to retrieve the document from his office safe, but Joseph,

who was pressed for time, responded “[j]ust tear the damn thing up”

and left.

240

Later, the lawyer ran the codicil through a paper shred-

der.

241

A Tennessee appellate court held that the codicil remained

valid.

242

As the judges explained, the instrument had been “destroyed

‘by the testator’s direction’ but not ‘in the testator’s presence.’”

243

C. Equal Dignity

At first blush, the equal dignity principle seems to make sense. If

a testator must step inside the prophylactic bubble of the formalities

to make a will, then she should need to do the same to un-make a will.

This stance ensures that revocations boast all the virtues of the Wills

Act, from preserving the testator’s intent in writing to creating

witnesses who can testify about the document should a dispute arise.

244

Even in holograph jurisdictions, insisting that the revocation be in the

decedent’s handwriting provides valuable proof of authenticity.

Therefore, imposing the same norms on execution and revocation

gives the law a tidy symmetry.

But on closer inspection, the equal dignity principle glosses over

meaningful divergences between execution and revocation. For start-

ers, the legal system needs to be especially sensitive to administrative

costs when formulating execution rules. After all, millions of wills pass

through probate courts each year.

245

Arguably, this tips the scales

toward requiring strict compliance with the execution formalities.

246

237

See id. at 704.

238

Id. at 704–05.

239

Id. at 705.

240 Id.

241 Id. at 706.

242 See id. at 723–24.

243 Id. at 723 (quoting T

ENN. CODE ANN. § 32-1-201(3) (2001) (current version at

ENN. CODE ANN. § 32-1-201(3) (2021))).

244 See, e.g., In re McGill’s Will, 128 N.E. 194, 196 (N.Y. 1920) (opining that “[t]he

reason that exists for requiring that a will to be effective must be executed with certain

formalities exists to an equal extent for requiring that an instrument revoking a will to be

effective must be executed with like formalities”).

245 See John H. Langbein, Will Contests, 103 Y

ALE L.J. 2039, 2042 n.5 (1994) (reviewing

AVID MARGOLICK, UNDUE INFLUENCE: THE EPIC BATTLE FOR THE JOHNSON & JOHNSON

FORTUNE (1993)).

246 See Peter Wendel, Testamentary Transfers and the Intent Versus Formalities Debate: The

Case for a “Charitable” Common Ground, 69 U.

KAN. L. REV. 249, 270 (2020) (noting that this

concern has surfaced in the debate over harmless error).

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This bright line approach allows probate judges “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.”

247

However, this concern is

not as pressing in the revocation context. Although every testator

makes a will, not every testator revokes a will. Thus, because revocation

issues arise less frequently, lawmakers could adopt a fact-sensitive test

for revoking by “will” without overburdening probate courts.

Moreover, one of the most frequently cited reasons for insisting

that testators strictly satisfy the Wills Act and holograph statutes—

discouraging wrongdoing—applies with less force to revocations.

Courts routinely justify their traditional zero-tolerance policy for

execution errors on the grounds that it “prevent[s] fraudulent or

unauthorized alterations or additions to the will.”

248

But sham

instruments are a legitimate concern, in part, because they can benefit

anyone. Since American law gives property owners broad testamentary

freedom, there is no limit to the class of people who have the incentive

to forge a will.

249

Revocations are starkly different. The only people

who stand to profit from the annulment of a will are either the

decedent’s heirs (if she has no other will) or the beneficiaries of a prior

instrument. For this reason, deterring bogus revocations may not be

as important as deterring the creation of bogus wills.

D. Anti-Wills

Refusing to enforce anti-wills is absurd. Consider a New Mexico

appellate decision called Estate of Martinez.

250

Jose Martinez executed

a valid will that gave his land to two of his children.

251

Eleven years

later, he signed and had notarized a document entitled “Revo[c]ation

of Last Will and Testament,” which explained that he wanted to

“revok[e] a previous WILL which was executed approximately

[t]welve[] years ago [and] . . . named my daughter . . . as Personal

247 Mann, supra note 19, at 1036.

248 In re Brown’s Estate, 32 A.2d 22, 23 (Pa. 1943); see also In re Estate of Posey, 214

A.2d 713, 720 (N.J. Union County Ct. 1965), aff’d, 223 A.2d 38 (N.J. Super. Ct. App. Div.

1966) (“The basic purpose of the Wills Act is to provide safeguards ‘rigorously thrown about

the testamentary act in order to forestall frauds by the living upon the dead.’”) (quoting In

re Taylor’s Estate, 100 A.2d 346 (N.J. Super. Ct. App. Div. 1953)).

249 See, e.g., R

ESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS

§ 10.1 cmt. c (A

M. L. INST. 2003) (stating that courts lack the “general authority to question

the wisdom, fairness, or reasonableness of the donor’s decisions about how to allocate his

or her property”).

250 Sanchez v. Martinez (In re Estate of Martinez), 985 P.2d 1230 (N.M. Ct. App. 1999).

251 See id. at 1231.

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Representative.”

252

The court held that the document was invalid

because it was not a “will”: it did not transmit property to anyone, and

it “would have taken effect immediately, not after the death of the

decedent.”

253

Notably, this approach does not serve any of the purposes of the

execution formalities. If Jose Martinez had added a clause to his

“Revo[c]ation of Last Will and Testament” giving $1 to his cousin, the

document would have blossomed into a valid “will” that revokes a

previous will.

254

But this additional clause would not have made

evidence of his intent to revoke clearer. It would not have increased

the probability that he was acting thoughtfully and voluntarily. And it

would not have made it easier for a probate court to administer his

estate. In fact, the equal dignity principle already ensures that anti-

wills fall into the green zone of reliability established by the Wills Act

and holograph statutes. Thus, demanding that a revocatory writing

take the additional step of conveying assets after death is arbitrary.

255

E. Words of Cancellation

Judicial hostility to enforcing words of cancellation comes from

two sources. The first is the language of revocation statutes. As noted,

the Statute of Frauds permitted revocation by “cancelling,” but the

Wills Act then omitted “cancelling” and added the catch-all “otherwise

destroying.”

256

Some American lawmakers amended their revocation

legislation to match.

257

As a result, courts in these states interpreted

this change to mean that revocation by “cancellations” needed to be

252 Id.

253 Id. at 1232. The writing also failed the equal dignity principle because it was only

attested by one witness (the notary). See id. at 1233. Oddly, the court only mentions this

much more obvious reason not to enforce the revocation at the end of the opinion, in

passing. See id.

254 Of course, he would have also needed to obtain an additional witness’ signature. I

am ignoring that nuance because it does not factor into the court’s analysis.

255 As noted, courts that require anti-wills to distribute the testator’s assets rely heavily

on the text of their states’ narrow revocation statutes, which do not expressly permit a

“writing” that is not a “will” to operate as a revocation. See supra text accompanying note

171–75. But these judges fail to acknowledge that judges in other states with narrow

revocation statutes “have held that an instrument to be effective as a revocation need not

be effective as a will.” In re Heazle’s Estate, 240 P.2d 821, 823 (Idaho 1952) (collecting

cases).

256 See supra text accompanying notes 140–41.

257 See, e.g., Estate of Eglee, 383 A.2d 586, 588–89 (R.I. 1978) (“When the Legislature

amended the revocation statute in 1896, it deleted the words ‘cancelling’ and ‘obliterating’

and inserted the phrase ‘otherwise destroying.’”) (quoting R.I.

GEN. LAWS 1896, ch. 203,

§ 17 (current version at 33 R.I.

GEN. LAWS § 33-5-10 (2021))); John B. Rees, Jr., American

Wills Statutes: II, 46 V

A. L. REV. 856, 875–76 (1960) (noting that in the middle of the

twentieth century, several states “require[d] that the will be ‘destroyed’”).

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so pervasive that they effectively “destroyed” the document.

258

Second,

“cancel” was once a term of art. Today, it simply means “[t]o

terminate.”

259

But at common law, its definition was narrower. As the

Vermont Supreme Court explained in 1864, “cancellation” meant

crossing out a document’s words:

To draw cross lines over the face of a written instrument has been,

and is, a common mode of showing the intent, thereby, to make an

end of it as an instrument in force. In earlier times, when the ability

to write was possessed by very few, the great mass of persons of all

grades from the highest lord to the lowest peasant, could manifest

their intent, with pen and ink, only by unlettered marks.

260

For these two reasons, courts held that to “cancel” a will meant making

“marks or lines across the written parts of the instrument [and] . . . not

merely on blank parts of the paper.”

261

This miserly approach operates in tandem with the equal dignity

principle to achieve spectacular revocation failures. For example, in

Thompson v. Royall, M. Lou Bowen Kroll, who had executed a will and

a codicil, decided that she wanted to revoke both instruments.

262

Unfortunately, her lawyer convinced her to keep them as templates in

case she wanted to make a new will.

263

Thus, on the manuscript cover

of the will and again on the back of the codicil, the lawyer wrote: “This

will null and void and to be only held . . . as a memorandum for

another will . . . .”

264

Kroll then signed both instruments.

265

The

Virginia Supreme Court observed that the sentence written by the

lawyer did not “physically affect the written portion of the will [or the

258 See, e.g., In re Glass’ Estate, 60 P. 186, 188 (Colo. App. 1900) (“[A] cancellation

would be . . . effective as such, if done with an intent to destroy an instrument . . . .” (emphasis

added)); Note, supra note 192, at 893 (“The English Wills Act requires that revocation by

act shall be by ‘burning, tearing, or otherwise destroying,’ and hence no cancellation or

obliteration can operate as such unless it amounts to a destruction of some part of the will.”)

(quoting Wills Act 1837, 7 Will. 4 & 1 Vict. c. 26, § 20 (Eng., Wales & Ir.)).

259 Cancel,

BLACK’S LAW DICTIONARY (11th ed. 2019).

260 Warner v. Warner’s Estate, 37 Vt. 356, 362 (1864); Dowling v. Gilliland, 122 N.E.

70, 72 (Ill. 1919) (citing a dictionary definition of “cancel” as “[t]o mark out or cut off, as

by the drawing of some letters across to signify that it is to be omitted; to blot or strike out,

as to cancel figures or writing” (quoting an unspecified dictionary)).

261 Thompson v. Royall, 175 S.E. 748, 750 (Va. 1934); see also Howard v. Hunter, 41 S.E.

638, 638 (Ga. 1902) (explaining that there is no revocation if the will remained “intact, and

no material part of the same [was] obliterated, written across, or canceled in any way”);

supra text accompanying notes 192–93.

262 175 S.E. at 748.

263 See id. at 748–49.

264 Id. at 749

265 Id.

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codicil].”

266

Thus, it was not a revocation by the act of cancellation.

267

The state high court also reasoned that the inscriptions were not valid

anti-wills because they were neither in Kroll’s handwriting nor signed

by two witnesses.

268

Thus, although “[t]he proof established the

intention to revoke,” both the will and the codicil remained valid.

269

Likewise, in Kronauge v. Stoecklein, Helen White executed a will

that left her assets to Jennifer Jones.

270

Three years later, White

handwrote in the margin of the will: “This will is void. We have never

heard or seen Jennifer Jones or did she come to Jess’ funeral so I do

not leave her anything.”

271

An Ohio appellate court admitted that

White’s desire to revoke her will “is not questioned,” but nevertheless

held that she had not achieved this goal because her notation neither

came into contact with the text of the will nor was attested.

272

Decisions like Thompson and Kronauge illustrate the perversity of

the majority approach to revoking by words of cancellation. If either

Kroll’s lawyer or White had written their respective sentences in a way

that touched a stray word or punctuation mark, then they would have

revoked by act. But that nuance does not illuminate the testator’s

wishes or assist courts in any way.

In fact, the law stacks the deck against words of cancellation even

though it serves the evidentiary, ritual, protective, and channeling

functions better than other ways of revoking by act. Indeed, like Kroll

and White, testators who try to revoke by words of cancellation often

explain why they wish to do so, which helps authenticate their wishes.

And words of cancellation are often either signed (as in Thompson) or

in the testator’s handwriting (like in Kronauge). Thus, they are far

more probative of the testator’s intent than drawing lines, tearing, or

burning the will, which “which can sometimes be ambiguous.”

273

F. Electronic Wills

Industry-drafted electronic will revocation laws suffer from several

ambiguities and omissions. For starters, recall that they permit testa-

tors to invalidate e-wills by making them “unreadable.”

274

One flaw

266 Id. at 750.

267 See id. at 749–50.

268 See id. at 749.

269 Id. at 749–50.

270 293 N.E.2d 320 (Ohio Ct. App. 1972).

271 Id. at 321.

272 Id. at 321–22.

273 R

ESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS § 4.1

reporter’s note 6 (A

M. L. INST. 1999).

274 See supra text accompanying notes 199–202. In addition, Arizona, Florida, and

Nevada allow testators to revoke by canceling an e-will, but Indiana does not. It is too early

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with this test is that people often try to dispose of digital documents

through methods that do not make them inaccessible. Indeed, users

commonly drag icons into the “recycle bin” on their desktop, from

which they can be easily retrieved.

275

Thus, it is not clear that this

intuitive-seeming way to try to revoke a digital testamentary instrument

accomplishes anything.

276

Likewise, these statutes’ approach to copies is problematic. E-wills

are unique because they blur the distinction between originals and

non-originals that looms so large with paper wills. A testator might

have a copy of her e-will on her desktop, one in the cloud, another on

a removable drive, and no idea which one was generated first. To try

to solve this problem, Indiana requires individuals who have not

entrusted their wills to a custodian to delete “each copy . . . in [their]

possession or control.”

277

Yet this creates the risk of that a single

overlooked file will doom a person’s wish to revoke. Conversely,

Arizona, Florida, and Nevada do not clarify whether a testator must

revoke an original.

278

The role of custodians further complicates matters. Most

consumers probably assume that they can revoke a will held by a

to tell which approach is preferable. Testators could reasonably believe that opening an

electronic will and typing “revoked” or some synonym would do the trick. However, unlike

paper wills, where testators often handwrite and sign or initial words of cancellation—thus

reinforcing their authenticity—font lacks the distinctiveness of penmanship. Accordingly,

permitting revocation by cancellation might create fertile ground for fraud.

275 See, e.g., Mayank Parmar, Microsoft is Working on a New Data Recovery Tool for Windows

10, W

INDOWS LATEST (June 27, 2020), https://www.windowslatest.com/2020/06/27

/microsoft-is-working-on-a-new-data-recovery-tool-for-windows-10/ [https://perma.cc

/NF7D-FZ8Y].

276 In fact, even if a testator takes the extra precaution of emptying the recycle bin,

data recovery tools can dredge up deleted items. See, e.g., Tomiwa Onaleye, Do You Know

That Files Deleted from Your Recycle Bin Can Still be Recovered? Here Is How, T

ECHNEXT (Jul. 6,

2020), https://technext.ng/2020/07/06/do-you-know-that-files-deleted-from-your-recycle-

bin-can-still-be-recovered-here-is-how/ [https://perma.cc/57ZB-42XP]. Of course, it is

possible that a court might find that making an e-will temporarily unreadable is sufficient to

revoke it. But see I

ND. CODE § 29-1-21-8(c) (2021) (announcing that a testator must

“permanently delet[e] each copy of the electronic record associated with the electronic will

in the testator’s possession or control or . . . render[] the electronic record for the

associated electronic will unreadable and nonretrievable” (emphasis added)).

277 I

ND. CODE § 29-1-21-8(c) (2021) (emphasis added). This is a sharp departure from

the common law, which holds that “[t]he testator need not perform a revocatory act on all

the duplicates.” R

ESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS

§ 4.1 cmt. f (A

M. L. INST. 1999); see also UEWA, supra note 28, § 7 cmt. (Multiple Originals)

(“Although multiple copies of an electronic will may exist, a physical act performed on one

of them by the testator with the intent to revoke will be sufficient to revoke the will.”).

278 These statutes declare that testators can revoke through an act performed “on the

will.” A

RIZ. REV. STAT. ANN. § 14-2507(A)(2) (2021); see also FLA. STAT. § 732.506 (2021);

EV. REV. STAT. § 133.120(2)(b) (2019). But it is not clear whether “the electronic will”

refers only to the first file generated or to copies of it.

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company by sending an email, calling customer service, or logging into

their account and pressing a button on a website. But this is not the

case. For one, as mentioned, in Arizona and Nevada, a custodian is

only bound by a directive “in a writing executed with the same

formalities required for the execution of an electronic will.”

279

Thus,

anything short of a signed and witnessed writing does not suffice. Even

worse, Florida has no method for testators to inform custodians of

their intent to revoke. And because the Sunshine State continues to

require that a third party revoke in the testator’s presence,

280

annulling

an e-will held by a custodian would be close to impossible.

The UEWA’s revocation section attempts to float above these

complications. It merely states that a testator can revoke by act by

performing “a physical act.”

281

This amorphous standard essentially

delegates the task of rulemaking to courts. Unfortunately, though, the

model statute’s comments are internally inconsistent. In one breath,

the drafters contend that if an e-will is lodged with a custodian that

“provides a designated mechanism for revocation, such as a delete

button, and the testator intentionally pushes the button, the testator

has used a physical act.”

282

In the next breath, they assert that

“[s]ending an email that says, ‘I revoke my will,’ is not a physical act

performed on the will itself because the email is separate from the

will.”

283

But the same logic should apply to the previous example of

pressing a delete button on a custodian’s webpage, which is also not “a

physical act performed on the will itself.”

284

Accordingly, it is unclear

whether testators can revoke through conduct that does not affect the

electronic document.

285

279 ARIZ. REV. STAT. ANN. § 14-2522(C) (2021); see also NEV. REV. STAT. § 133.120(2)(a)

(2019). But see I

ND. CODE § 29-1-21-8(e) (2021) (only requiring that testators contact a

custodian to request revocation “in writing”).

280 See F

LA. STAT. § 732.506 (2021).

281 UEWA, supra note 28, at § 7(b)(2); C

OLO. REV. STAT. § 15-12-1507(2)(b) (repealed

2021); N.D.

CENT. CODE § 30.1-37-05(2)(b) (2021); UTAH CODE ANN. § 75-2-1407(2)(b)

(West 2021); W

ASH. REV. CODE §§ 11.12.400–11.12.491 (2021).

282 UEWA, supra note 28, § 7 cmt. (Physical Act Revocation).

283 Id.

284 Id.

285 The UEWA’s comments also declare that a testator can revoke an e-will by an act

performed on a print-out of the underlying file. See id. This might be unwise. Recall that

when a will was last in the testator’s possession and cannot be found at her death, courts

presume that she revoked it. See supra text accompanying notes 164–68. As a result, under

the UEWA, any time a testator printed a copy of a digital will and then discarded it, there

would be a colorable revocation claim. See Hirsch, supra note 29, at 849 (“[A] testator might

well view the printout of an e-will as a copy for review and thus treat it carelessly . . . .”). For

Australian cases with dueling views on this subject, compare Mahlo v Hehir [2011] QSC 243

¶¶ 44–45 (19 Aug. 2011) (Austl.) (assuming that the presumption would apply in a case

where the testator printed a copy of a will but only the electronic file was located after she

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* * *

Although some revocation rules further the same evidentiary,

ritual, protective, and channeling functions as the execution formali-

ties, others serve no objective. And yet these doctrines frequently

thwart a testator’s expectations. Accordingly, the next Part discusses

ways for courts and lawmakers to soften the blow of the revocation

formalities.

IV. SOLUTIONS

This Part explores solutions to intent-defeating revocation rules.

It begins by examining two existing attempts to relax the high

formalism of revocation law: the constructive trust and the 1990 UPC

revisions. It demonstrates that even though these approaches are

superior to traditional revocation doctrine, they leave much to be

desired. Finally, this Part offers a novel solution to the revocation

conundrum: aligning will revocation with the rules that govern the

revocation of trusts.

A. Constructive Trusts

Some courts have tried to avoid unfair results in revocation cases

by imposing a constructive trust on inheritances that would be an

undeserved windfall. But as this section reveals, the constructive trust

is, at best, a partial solution to the problem of revocation formalism.

The constructive trust is an ancient equitable remedy. It is a legal

fiction that applies when someone has acquired property through

unfair means:

A constructive trust is one that arises by operation of law against

one who, by fraud, actual or constructive, by duress or abuse of

confidence, by commission of wrong, or by any form of

unconscionable conduct, artifice[,] concealment, or questionable

means, or who in any way against equity and good conscience,

either has obtained or holds the legal right to property which he

ought not, in equity and good conscience, hold and enjoy.

286

To prevent unjust enrichment, courts deem the defendant to be a

trustee of the assets, forcing her “to convey [her] interest to another

died), with Yazbek v Yazbek [2012] NSWLR 594 ¶ 131 (1 June 2012) (Austl.) (reasoning that

testators “may feel more ready to discard a paper copy in circumstances where the

electronic one is retained” and that “[t]he unavailability of the paper copy is more likely to

be explained by such an attitude to electronic record keeping . . . than it is by an inference

that the document had been destroyed”).

286 In re Estate of Abernathy, 778 So. 2d 123, 126 (Miss. 2001) (citing Saulsberry v.

Saulsberry, 78 So. 2d 758, 760 (Miss. 1955)).

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to whom it justly belongs.”

287

Judges often invoke this mechanism in

cases involving breaches of contracts either to make or not to revoke a

will

288

and beneficiaries who murdered the decedent

289

or used fraud

or force to prevent her from changing her estate plan.

290

Likewise, some judges have used constructive trusts in failed

revocation cases. For example, in Gushwa v. Hunt, eighty-five-year-old

George Gushwa executed a will leaving his estate largely to his nieces

and nephews, not his longtime wife.

291

The husband of one of his

nieces, Ted Dale, retained the original.

292

But gradually, Gushwa

began to resent the fact that his relatives rarely called or visited, and so

he allegedly called Dale and requested the will so he could revoke it.

293

287 CARYL A. YZENBAARD, GEORGE GLEASON BOGERT, AND GEORGE TAYLOR BOGERT,

THE LAW OF TRUSTS AND TRUSTEES § 471, Westlaw (database updated June 2021); see also

Garrigus v. Viarengo, 963 A.2d 1065, 1075 (Conn. Ct. App. 2009) (“The issue raised by a

claim for a constructive trust is, in essence, whether a party has committed actual or

constructive fraud or whether he or she has been unjustly enriched.” (quoting Cadle Co. v.

Gabel, 794 A.2d 1029, 1040 (Conn. Ct. App. 2002))); Roscoe Pound, The Progress of the Law,

1918–1919 Equity, 33 HARV. L. REV. 420, 421 (1920) (explaining that in equity courts “one

of the most effective remedial expedients at [the judge’s] command was to treat a

defendant as if he were a trustee and put pressure upon his person to compel him to act

accordingly”).

288 See, e.g., Cowin v. Salmon, 13 So. 2d 190, 198 (Ala. 1943) (“A will as such is

revocable. But when it is the result of a contract on a valuable consideration, the revocation

of the will does not prevent the enforcement of a trust upon the basis of its obligation.”);

Stahmer v. Schley, 157 Cal. Rptr. 756, 758 (Ct. App. 1979) (citing Notten v. Mensing, 45

P.2d 198 (Cal. 1935)) (“[W]hen the testators have made a written agreement not to revoke,

and the agreement is supported by consideration, equity will enforce the agreement by

requiring the recipients of the estate to hold the property in constructive trust for the

intended beneficiaries.”); Jason Thomas King, Lifetime Remedies for Breach of a Contract to

Make a Will, 50 S.C. L. REV. 965, 971 (1999) (“If a promisor dies intestate, or without a will

conforming to the contract, equity will enforce the contract in the form of a constructive

trust against the testator’s heirs, ensuring the promisee receives what is deserved.”).

289 See, e.g., Kelley v. State, 196 A.2d 68, 69–70 (N.H. 1963) (reasoning that, in states

that do not bar a slayer from inheriting by statute, “a court applying common law

techniques can reach a sensible solution by charging the spouse, heir or legatee as a

constructive trustee of the property where equity and justice demand it”); John W. Wade,

Acquisition of Property by Wilfully Killing Another—A Statutory Solution, 49 HARV. L. REV. 715,

717 (1936) (observing that some jurisdictions have dealt with this conundrum by holding

“that title will pass to the slayer, but that equity will hold him a constructive trustee for the

heirs or next of kin of the decedent”).

290 See, e.g., Latham v. Father Divine, 85 N.E.2d 168, 171 (N.Y. 1949) (“The story is,

simply, that defendants by force and fraud, kept the testatrix from making a will in favor of

plaintiffs.”); White v. Mulvania, 575 S.W.2d 184, 190 (Mo. 1978) (“[I]f the testatrix were

fraudulently prevented from changing her will in favor of the plaintiffs due to the fraud, . . .

then the property which devolves to the grandchildren solely as a result of this fraud must

be held by them in a constructive trust for the plaintiffs.” (emphasis omitted)).

291 197 P.3d 1, 2 (N.M. 2008).

292 Id. Dale and his wife were not beneficiaries. See id.

293 See id.

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Dale responded by sending Gushwa a partial photocopy of the

document.

294

Gushwa then hired a lawyer, who told him to take

elaborate measures to cancel the instrument:

[H]is new lawyer assisted him in drafting a document entitled

“Revocation of Missing Will(s),” in which Decedent repeatedly

stated that he wanted to revoke his previous Will. At the same time,

on the advice of counsel Decedent wrote “Revoked” on the copy of

three pages of the Will . . . and attached those pages to the

Revocation of Missing Will(s) document. That document was

signed by Decedent and two witnesses and was notarized.

295

The New Mexico Supreme Court held that this document was not a

revocation.

296

For starters, Gushwa’s defacement of the Xerox was

invalid under the copy rule.

297

Moreover, because New Mexico did not

recognize anti-wills at the time, Gushwa’s signed, witnessed, and

notarized declaration of intent to revoke was meaningless.

298

However,

the court acknowledged that Gushwa’s wife might be entitled to a

constructive trust over the assets she would have received in the

absence of the will.

299

The court remanded the case for the trial court

to decide whether Dale “wrongfully prevented [Gushwa] from

obtaining the original Will, thereby making it virtually impossible for

[him] to comply with the statutory requirements for revocation.”

300

Similarly, in Estate of Tolin, Alexander Tolin told his neighbor,

who was a retired lawyer, that he wished to revoke a codicil that named

294 See id.

295 Id.

296 See id. at 3–4.

297 See id. at 6–7.

298 See id. at 3–5. As noted above, New Mexico has since amended its revocation statute

to recognize anti-wills. See supra note 185 and accompanying text.

299 See Gushwa, 197 P.3d at 7.

300 Id. Likewise, as mentioned, in the late eighteenth and early nineteenth centuries,

heirs often claimed that a beneficiary had tricked the testator into believing that her will

had been destroyed. See supra text accompanying notes 126–30. Although courts refused

to find that these instruments had been revoked, some held that the allegations, if proven,

would entitle the heir to a constructive trust. See, e.g., Brazil v. Silva, 185 P. 174, 177–78

(Cal. 1919), disapproved of on other grounds by Ludwicki v. Guerin, 367 P.2d 415 (Cal. 1961)

(holding that plaintiff could pursue cause of action for constructive trust when the testator’s

wife had supposedly burnt an envelope that she falsely said contained the will); In re

McCloskey’s Estate, 6 Pa. D. & C.2d 97, 97–98, 107 (Pa. Orphans’ Ct. 1956) (acknowledging

the possibility that a constructive trust might arise from allegations “that decedent’s sister,

who is the proponent and sole beneficiary of the will, falsely represented to decedent that

his will in her possession had been destroyed in a fire and that decedent relied thereon”);

RESTATEMENT (FIRST) OF RESTITUTION § 184 cmt. e (AM. L. INST. 1937) (“Where a testator

is by fraud, duress or undue influence prevented from revoking his will, or from revoking a

devise or bequest, by the person who takes the property under the will, he holds it upon a

constructive trust for the person who would have taken if the will or devise or bequest had

been revoked.”).

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a charity, Broward Art Guild, as the residuary beneficiary.

301

The

neighbor advised Tolin to destroy the codicil.

302

In front of the

neighbor, Tolin tore up a document that he believed was the codicil

but was actually a high-quality photocopy of it.

303

The Florida Supreme

Court first applied the copy rule and determined that Tolin had failed

to revoke the codicil.

304

But then, observing that even Broward Art

Guild admitted that Tolin had ripped up the codicil thinking that it

was the original, the court “f[ou]nd that a constructive trust is

appropriate under these unique and undisputed facts.”

305

Despite opinions like Gushwa and Tolin, the constructive trust is

no panacea. First, some courts refuse to employ the remedy in

revocation cases on the grounds that doing so would be an improper

end-run around the revocation formalities.

306

As the Ohio Supreme

Court opined, the Statute of Frauds was “designed to prevent the

frauds and perjuries arising out of mere parol revocations, and to

sanction a recovery . . . would open the door for the very evils which

the [S]tatute intended to exclude.”

307

Accordingly, in some states, the

constructive trust is a non-starter.

Second, even in states that are willing to use the tool, a

constructive trust is “not appropriate where there is an error in the

execution of [a] document.”

308

For example, Florida courts have

refused to extend Tolin to cases in which decedents failed to sign a will

or obtain the proper witnesses. Thus, constructive trusts likely cannot

provide relief when a testator tries to create an anti-will but does not

comply with the Wills Act or a holograph statute.

301 In re Estate of Tolin, 622 So. 2d 988, 989 (Fla. 1993).

302 Id.

303 Id.

304 See id. at 990.

305 Id. at 991.

306 See, e.g., Kent v. Mahaffey, 10 Ohio St. 204, 220 (1859) (“[T]o hold the legatee a

trustee in such case would seem to nullify the statute prohibiting revocations except in a

specified manner.”); In re Evans’ Will, 98 N.Y.S. 1042, 1044 (N.Y. App. Div. 1906)

(“Legislative limitations or omissions do not constitute a court as a curative Legislature.”);

cf. Reiter v. Carroll, 198 S.W.2d 163, 166 (Ark. 1946) (declining to impose a constructive

trust when the plaintiffs merely proved that the testator “instructed the appellee to destroy

the will, and that the appellee [falsely] told him that the will had been destroyed”). In

addition, in some states, probate courts lack the power to adjudicate causes of action that

seek a constructive trust. See, e.g., Graham v. Birch, 49 N.W. 697, 699 (Minn. 1891) (refusing

to entertain constructive trust argument on appeal from probate court that lacked

jurisdiction over the matter).

307 Kent, 10 Ohio St. at 221.

308 Kelly v. Lindenau, 223 So. 3d 1074, 1078 (Fla. Dist. Ct. App. 2017); see Allen v. Dalk,

826 So. 2d 245, 248 (Fla. 2002) (refusing to impose a constructive trust when the decedent

failed to sign the will).

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Third, a plaintiff who seeks a constructive trust must carry a heavy

burden. Indeed, “the proof must be so clear, convincing, strong, and

unequivocal as to lead to one conclusion.”

309

Even strong evidence

that a testator intended to revoke may be insufficient. For instance, in

Davis v. Howard, Olive Davis executed a will that left $1 to her daughter

and everything else to her son.

310

Davis then mailed the will to her

son.

311

Decades later, she wrote to her son and asked him to revoke

the lopsided document, saying “I can’t have that bitterness now. Time

is too short.”

312

However, the son did not destroy the will.

313

The

Oregon Supreme Court held that these facts were not sufficiently

egregious to warrant making the son a constructive trustee for the

daughter’s benefit.

314

Thus, the constructive trust only provides partial

relief for the ruthless revocation formalities.

B. The UPC

The 1990 UPC also attempted to de-formalize revocation law.

Unfortunately, it only took modest steps in this direction.

The 1990 UPC revisions tried to liberalize revocation doctrine in

two ways. First, the drafters reformed the test for revoking by writing

words of cancellation. Recall that when the testator writes “void” or

“revoked” on the will, most courts only deem the language to be a

cancellation if it overlaps with the text of the will.

315

Section 2-507 of

the 1990 UPC abolishes that nuance by providing that a revocatory act

is effective “whether or not [it] . . . touched any of the words on the

will.”

316

Second, although the UPC’s harmless error rule primarily

targets will execution, it also spills over into the realm of revocation.

Indeed, the doctrine allows courts to enforce failed attempts to

execute not only wills, but also anti-wills:

Although a document or writing added upon a document was not

executed in compliance with [the execution formalities], the

document or writing is treated as if it had been executed in

compliance with [the execution formalities] if the proponent of the

document or writing establishes by clear and convincing evidence

309 Kurtz v. Solomon, 656 N.E.2d 184, 191 (Ill. App. Ct. 1995) (citing Suttles v. Vogel,

533 N.E.2d 901, 905 (Ill. 1988)).

310 527 P.2d 422, 423 (Or. Ct. App. 1974).

311 See id.

312 Id.

313 See id. To be fair, the son testified that he told Davis “that he could not change the

will and that if she wanted it changed she would have to write another will” and that she

“neither asked him to destroy the will nor asked him to mail the will to her.” Id.

314 See id. at 424.

315 See supra subsection II.B.3.

316 U

NIF. PROB. CODE § 2-507(a)(2) (UNIF. L. COMM’N 2019).

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that the decedent intended the document or writing to constitute

(i) the decedent’s will[ or] (ii) a partial or complete revocation of the

will . . . .

317

These curative measures are major upgrades. For example, unlike

conventional law, the UPC’s approach to revocation by act would

validate words of cancellation written in the margins or a blank part of

the will. As noted above, there is rarely doubt that words of

cancellation are authentic because they tend to be both in the

testator’s handwriting and to explain the reason for the testator’s

actions.

318

In fact, harmless error could even resuscitate written words

of cancellation that appear on another document, rather than the will.

Indeed, the rule applies to “a document”—that is, any document—

that the testator intended to be “a . . . revocation of the will.”

319

Finally,

harmless error would excuse garden variety execution defects in anti-

wills, such as the testator’s failure to sign or acknowledge the anti-will

in front of two witnesses who were present at the same time.

But the UPC’s approach does not go far enough. The most

revolutionary of the UPC’s changes—harmless error—excludes many

botched revocations by act. Indeed, because the rule only governs a

faulty “document or writing,” it excludes deficient attempts to revoke

by burning, tearing, and obliterating.

320

For example, harmless error

could not cure a would-be revocation that violates the copy rule or the

presence requirement.

321

Thus, if someone torches a copy of her will

317 UNIF. PROB. CODE § 2-503 (UNIF. L. COMM’N 2019) (emphasis added).

318 See supra text accompanying note 272.

319 U

NIF. PROB. CODE § 2-503.

320 Moreover, there is a disconnect between harmless error’s remedy and revocation

by act. When harmless error applies, it compels the probate judge to treat the “document

or writing . . . as if it had been executed in compliance with” the Wills Act formalities. U

NIF.

PROB. CODE § 2-503. But a revocation by act never even tries to satisfy the Wills Act

formalities. Instead, it is governed by the revocation formalities. See U

NIF. PROB. CODE § 2-

507. Thus, it would make no sense to deem a failed attempt to revoke by act as a valid

writing under the Wills Act.

321 Some Australian states have also adopted a forward-looking harmless error rule for

revocations. They treat a will as revoked if the “the testator . . . or another person in the

testator’s presence and at the testator’s direction . . . deal[t] with the will in such a manner

that the [c]ourt is satisfied from the state of the will that the testator intended to revoke it.”

Wills Act 2000 (NT) s 13(f); Succession Act 2006 (NSW) pt 2.1 div 5 s 11; Succession Act 1981

(Qld) pt 2 s 13(e)(ii); Wills Act 2008 (Tas) pt 2 div 3 s 15; Wills Act 1997 (Vic) div 5

s 12(2)(g). This doctrine allows judges to deem acts other than burning, canceling, tearing,

obliterating, or destroying to be revocations. However, like American harmless error, it also

retains the presence requirement and the copy rule. See In re Estate of Miruzzi [2018]

NSWSC 1899 ¶ 58 (defending the copy rule on the grounds that “[i]n an age of widespread,

high-quality reproduction of documents by mechanical or electronic means, . . . a testator’s

testamentary intentions [would be] at risk of challenge if ever any form of copy were to be

observed ‘destroyed’”).

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or hears her lawyer destroy the instrument over the telephone,

harmless error cannot help.

322

C. Importing Trust Formalities

The core requirements for revoking a will are nearly 350 years old.

This section urges lawmakers to reimagine these formalities by

replacing them with the pliable rules that govern the revocation of a

trust.

Recall that the popularity of trusts has been one of the catalysts

for the liberalization of the law of will execution.

323

Because trusts

convey billions of dollars every year but do not need to be attested by

two witnesses or entirely handwritten, they have helped convince some

scholars and lawmakers that the Wills Act and holograph statutes are

overkill.

324

Likewise, trust law’s approach to revocation is light-years ahead of

wills law. Settlors usually do not need to satisfy rigid mandates. In-

stead, trust revocation formalities are two-tiered. First, as a general

principle, individuals can rescind a trust “in any way that provides clear

and convincing evidence of the[ir] . . . intention to do so.”

325

Second,

people who prefer to narrow the permissible methods of revocation

enjoy the freedom to grant themselves “a power to revoke . . . by

322 The comments to the Restatement (Third) of Property suggests that this is not the case

by providing the following example of the harmless error rule in action:

G’s will was in the possession of her executor, a neighbor. G telephoned the

executor at home and told him to tear up her will. The executor retrieved the

will from his desk and tore it up. . . . If G’s intent to revoke is proved by clear and

convincing evidence, . . . the failure to perform the act in G’s conscious presence

may be a harmless error that can be excused . . . .

ESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS § 4.1 cmt. l illus. 9

M. L. INST. 1999). Although I agree that this should be the law, for the reasons stated

above in the text accompanying notes 319–320, it is currently not the law.

323 See supra text accompanying notes 83–87.

324 Id.

325 R

ESTATEMENT (THIRD) OF TRUSTS § 63(3) (AM. L. INST. 2003); see also ARK. CODE

ANN. § 28-73-602(c)(2)(B) (2021); FLA. STAT. § 736.0602(3)(b)(2) (2021); KAN. STAT. ANN.

§ 58a-602(c)(2)(B) (2021); K

Y. REV. STAT. ANN. § 386B.6-020(3)(b)(2) (West 2020); ME.

STAT. tit. 18-B, § 602(3)(B)(2) (2021); N.D. CENT. CODE § 59-14-02(3) (2021); TENN. CODE

ANN. § 35-15-602(c)(2)(B) (2021); UTAH CODE ANN. § 75-7-605(3)(b)(ii) (West 2021); WIS.

STAT. § 701.0602(3)(b)(2) (2021); cf. OHIO REV. CODE ANN. § 5806.02(C) (West 2021)

(adding the caveat that unless a trust expressly provides otherwise, “a revocable trust may

not be revoked or amended by a will or codicil”); M

ICH. COMP. LAWS § 700.7602(3)(b)(i)

(2021) (only allowing written trusts to be revoked “by another writing manifesting clear and

convincing evidence of the settlor’s intent to revoke”); M

INN. STAT. § 501C.0602(c)(2)(i)-

(ii) (2021) (same). Other states follow a more restrictive approach that only allows a settlor

to revoke a written trust by “a later written instrument delivered to the trustee.” A

LA. CODE

§ 19-3B-602(c)(2)(B) (2021).

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[following] a particular procedure.”

326

For example, settlors often

provide that they can revoke the instrument by delivering a signed

writing to the trustee.

327

Extending this flexibility to testators would be an improvement in

several ways. For one, it would liberate them from the straitjacket of

the revocation formalities. As we have seen, near-miss revocations are

endemic: people routinely disfigure copies of their wills,

328

have third

parties who are not present destroy the document,

329

write words of

cancellation in the margins,

330

and fail to satisfy the equal dignity prin-

ciple.

331

But in virtually all these cases, there is clear and convincing

evidence of what the testator sought to accomplish. Thus, adopting

the lenient standard from trust law would change these harsh

outcomes.

Moreover, this approach would pay dividends in the context of

electronic wills. For starters, it would harmonize revocation principles

for paper and digital wills. As noted, lawmakers have promulgated

unique rules for the rescission of e-wills, which makes an already

byzantine area of law even more convoluted.

332

By contrast, trust

revocation rules offer a one-size-fits-all rubric that would reduce

confusion. Likewise, as I have argued, industry-drafted statutes make

revoking an e-will too difficult.

333

Deleting them and using loose rules

from trust law would prevent the cruel history of revocation formalism

from repeating itself in this brave new world.

326 RESTATEMENT (THIRD) OF TRUSTS § 63 cmt. i (AM. L. INST. 2003); MARY F.

RADFORD, GEORGE GLEASON BOGERT, AND GEORGE TAYLOR BOGERT, THE LAW OF TRUSTS

AND TRUSTEES § 1000, Westlaw (database updated June 2021) (“The settlor may make

provision for the method by which a power of revocation or termination is to be exercised

and such a provision must be followed.”); A

LA. CODE § 19-3B-602(c) (2021) (“The settlor

may revoke . . . by substantial compliance with a method provided in the terms of the

trust . . . .”); accord A

RK. CODE ANN. § 28-73-602(c)(1) (2021); FLA. STAT. § 736.0602(3)(a)

(2021); K

AN. STAT. ANN. § 58a-602(c)(1) (2021); KY. REV. STAT. ANN. § 386B.6-020(3)(a)

(West 2021); M

E. STAT. tit. 18-B, § 602(3)(A) (2021); MICH. COMP. LAWS § 700.7602(3)(a)

(2021); M

INN. STAT. § 501C.0602(c)(1) (2021); OHIO REV. CODE ANN. § 5806.02(C) (West

2021); N.D.

CENT. CODE § 59-14-02(3) (2021); TENN. CODE ANN. § 35-15-602(c)(1) (2021);

TAH CODE ANN. § 75-7-605(3)(a) (West 2021); WIS. STAT. § 701.0602(3)(a) (2021).

327 See, e.g., 3 J

EFFREY H. TIERMAN, CALIFORNIA TRANSACTIONS FORMS: ESTATE

PLANNING § 13:46 n., Westlaw (database updated June 2021) (observing that “[t]his form

is common in most trusts”); Schlossberg v. Estate of Kaporovsky, 303 So. 3d 982, 986 (Fla.

Dist. Ct. App. 2020) (holding that deed conveying condo qualified as “an instrument in

writing delivered to the trustees”); Thompson v. Waukesha State Bank, 510 F. Supp. 2d 453,

460 (N.D. Ill. 2007) (featuring a settlor who revoked through this mechanism).

328 See supra text accompanying notes 1–4, 216–18, 291–305.

329 See supra text accompanying notes 225–30, 234–43.

330 See supra text accompanying notes 5–8, 262–72.

331 See supra text accompanying notes 134–37, 262–72.

332 See supra subsection II.B.4.

333 See supra text accompanying notes 274–80.

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Admittedly, like any dilution of testamentary formalities, this

change could sow doubt about a testator’s intent and undermine the

channeling function. For one, the clear and convincing evidence test

might raise tough line-drawing questions. Testators sometimes deal

with their wills in ways that are ambiguous, such as crumpling them up

and “dropp[ing] them in the waste basket”

334

or “placing [them] . . .

in a paper sack with other items of trash.”

335

Similarly, some people

allegedly try to revoke their wills through oral statements.

336

Say what

you will about current revocation law, but it makes these into easy

cases. Conversely, my thesis would force courts to wade into the factual

record.

But trust law also offers a way around this morass. As mentioned,

settlors can create private formalities.

337

As a result, my proposal would

also accommodate testators who want more protection against

fraudulent revocations. For example, cautious testators could ex-

pressly preclude revocation by act or specify that a revocatory writing

would need to have five witnesses.

338

In fact, authorizing private will

revocation formalities would be fitting. As mentioned, the original

revocatory acts in the Statute of Frauds were crowdsourced: Parliament

chose “burning[,] cancelling[,] teareing [sic,] or obliterating the

[will]” because that was how most testators showcased their desire to

revoke.

339

Thus, at a time when wills law is in flux, it would make sense

to once again democratize the issue.

340

334 Gassman v. Stanton (In re Estate of Stanton), 472 N.W.2d 741, 746 (N.D. 1991).

335 SouthTrust Bank of Ala. v. Winter, 689 So. 2d 69, 71 (Ala. Civ. App. 1996).

336 See, e.g., Milbourne v. Milbourne, 799 S.E.2d 785, 792 (Ga. 2017).

337 See supra text accompanying notes 325–26.

338 Apparently, some testators already try to personalize the revocation formalities. See,

e.g., Generic Probate Pleading at 3, Estate of McAdam, No. PES-14-298205 (Cal. Super. Ct.

filed Oct. 28, 2014) (“I do hereby declare that I will not at any time revoke this Will except

by a later Will . . . or by the destruction of both copies [of the Will].”).

339 See supra text accompanying notes 122, 127–28.

340 Admittedly, private formalities could also muddy the waters about a testator’s

wishes. There has been a steady stream of litigation over whether a settlor meant a

procedure to be the exclusive way to revoke a trust. See, e.g., Cundall v. Mitchell-Clyde, 265

Cal. Rptr. 3d 254, 261–65 (Ct. App. 2020) (surveying California caselaw); Barlow v. Olguin

(In re Estate of Schlicht), 329 P.3d 733, 737 (N.M. Ct. App. 2014) (upholding a revocation

when “the settlor’s trust provided a method to revoke the trust’s provisions, but that method

was not expressly stated to be the exclusive method of revocation”); Warne v. Warne, 275

P.3d 238, 248 (Utah 2012) (same for partial revocation of a particular beneficiary’s

interest). Thus, lawmakers and courts would need to provide guidance on how to

distinguish a will that merely gives the testator the option to follow a unique revocatory

method from one that displaces all other revocation rules. In addition, wills are already

laden with boilerplate that testators do not read and could not understand. See Reid Kress

Weisbord & David Horton, Boilerplate and Default Rules in Wills Law: An Empirical Analysis,

103 I

OWA L. REV. 663, 668 (2018) (examining 230 wills from Sussex County, New Jersey,

and finding that they often used “language that sounds authoritative, but makes little sense

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CONCLUSION

Unlike the requirements for making a valid will, the revocation

formalities have never received sustained attention. This Article has

tried to remedy this omission. It has demonstrated that these finicky

rules routinely frustrate a testator’s wishes and yet do not always serve

demonstrable policy objectives. Lawmakers should abandon them,

adopt principles of revocation from the field of trusts, and thus bring

will revocation into the twenty-first century.

in context”); David Horton & Reid Kress Weisbord, Boilerplate No Contest Clauses, 82 LAW &

CONTEMP. PROBS., no. 4, 2019, at 69 (2019) (reaching similar conclusions about no contest

clauses in a study of 457 wills from Alameda County, California). If private revocation rules

in wills also devolve into legalese, they are unlikely to improve outcomes.

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