ALERT REGARDING RETROACTIVITY OF NEW HARMLESS ERROR RULE FOR WILL EXECUTION

By Silvio Reggardio III, Esq.^*

The Trusts and Estates Section’s Executive Committee (TEX-COM) sponsored AB 2248 (Spitzer and Ma) Statutes of 2008, Chapter 53, establishing a harmless error rule in connection with the execution ofwills. This new law was analyzed in a recent article in the Quarterly.¹ This Alert addresses questions raised as to whether the new law applies to wills executed before the new law became effective.

The Probate Code contains technical requirements for witnessing printed (as opposed to handwritten) wills. Prior to this legislation, those requirements were strictly enforced, and a noncompliant will was void. This meant that a decedent’s property might pass in a manner the decedent did not intend simply because technical requirements were not met. Several states had adopted the Uniform Probate Code’s "harmless error rule," under which a probate court may uphold a noncompliant will if it finds by clear and convincing evidence that the decedent intended the document to be his or her will. AB 2248 amended the Probate Code to include such a harmless error rule.

As amended by AB 2248, Probate Code section 6110 reads as follows (with italicized text reflecting amendments):