Wills, Trusts, and Estates, Pages 178–182

In re Estate of Hall

Supreme Court of Montana, 2002

Facts:

Decedent and his wife were changing their will, and the lawyer gave them a draft. The decedent asked if they could sign the draft as their will until the final version was complete. The lawyer complied and notarized it, but no witnesses were present to attest to the execution. They then went home and tore up their old will, but decedent died before the final version was finished.

Procedural History:

District court admitted the new will to probate.

Issue:

Was decedent's will valid even though not attested?

Plaintiff's Argument:

As Montana requires two witnesses to attest to the execution of a will, the will is invalid as a matter of law.

Rule:

Montana adopts the harmless error rule, which allows a will to be treated as properly executed if it is established by "clear and convincing evidence that the decedent intended the document to be the decedent's will."

Reasoning:

Testimony showed that decedent and his wife believed the will to be good. The district court could have reasonably interpreted this to mean that they expected it to stand as a will until the final form was provided.

Holding:

Yes, as the decedent intended it to be his will, the defects in execution were harmless error. Affirmed.

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