Harmless Error Wills

Oregon, like most states, has laws regulating what sorts of documents constitute a “will” and how to execute such documents so they are valid and enforceable. Some examples of the kinds of things different states require are whether every page needs to be signed or initialed, whether it needs to be signed in front of witnesses or a notary, whether a witness can be someone who benefits from the will, and whether witnesses must also sign the will. You can find Oregon’s specific requirements encoded in various provisions of Oregon Revised Statutes (“ORS”) Chapter 112.

Too bad, So sad frc0gbsw

Prior to March of this year, I referred to Oregon as a ‘too bad, so sad’ state with regard to purported wills that failed to meet statutory requirements in one or more respects. Your father wrote a will and signed it but there were no witnesses? Too bad, so sad; it’s not a will and your father’s estate will be administered under the laws of intestacy (what happens without a will in place). This is no longer the automatic result because, effective March 14, 2016, Oregon adopted what has come to be known as the Harmless Error Wills statute, ORS 112.238.


New law

Under ORS 112.238, which applies to the estates of decedents dying after the effective date (03/14/16), when a decedent leaves behind a writing a petitioner can offer it to a court and the court will accept it as the person’s ‘will’ on a showing of clear and convincing evidence that it embodies the decedent’s testamentary intent. A petitioner can also use this statute to offer a writing that appears to partially or completely revoke a will, or to make additions or changes to a will.

If you are considering undertaking some estate planning, the will formalities haven’t changed and still hold so it is best to have an attorney assist you in the preparation of a will or any other estate plan to minimize problems after you are gone, as some view this statute as an open invitation to a flood of probate litigation.

If you are a beneficiary under a ‘will’ that might not meet all of the ordinary requirements, it is important that you consult with a probate attorney who is aware of these changes in Oregon law to discuss your legal options. The clear and convincing standard is a high bar and there are procedures to follow for submitting the purported will to the court, and if a probate case has already been opened your time to do so may be short.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

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