On Wednesday, April 16, 2020, Governor Walz signed into law legislation related to the COVID-19 pandemic. One of the provisions is the so-called "harmless error" law for wills. This law has the potential to bring much needed flexibility to estate planning during this pandemic and allow vulnerable individuals to more readily work with an attorney right now. As always, careful attention is still critical to properly drafted and executed estate plans. It is more important than ever to recognize that homemade and internet wills are no substitutes for capable and qualified counsel from an experienced attorney.
The harmless error law modifies the statutory requirements for a valid will, which are generally strictly enforced. One of the biggest challenges to creating a valid will during the pandemic is the requirement to have two witnesses. Under the probate statute, the witnesses must sign in the presence of the testator or have the testator acknowledge his or her signature to the witnesses shortly after signing. The statute does not permit electronic signatures and Minnesota's remote online notarization law does not cover estate planning documents. Under the harmless error rule, a document can be treated as a valid will even if the normally strict requirements have not been met.
Specifically, the harmless error provisions are as follows:
Sec. 2. [524.2-503] HARMLESS ERROR.
(a) If a document or writing added upon a document was not executed in compliance with section 524.2-502, the document or writing is treated as if it had been executed in compliance with section 524.2-502 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute:
(1) the decedent's will;
(2) a partial or complete revocation of the will;
(3) an addition to or an alteration of the will; or
(4) a partial or complete revival of the decedent's formerly revoked will or of a formerly revoked portion of the will.
(b) This section applies to documents and writings executed on or after March 13, 2020, but before February 15, 2021.
EFFECTIVE DATE. This section is effective retroactively from March 13, 2020, and applies to documents and writings executed on or after that date.
The harmless error rule is part of the Uniform Law Commission's Uniform Probate Code, though it has not been part of Minnesota's probate code. The general intent here was to ensure that wills would not be invalidated for failure to strictly comply with the probate code. For example, in 2007, a probate court in California allowed a will to be probated where the testator signed a will in front of only one witness but there was clear and convincing evidence of the testator's intent (the case is Estate of Reese, though it is not published). This included handwritten letters from the testator to his daughter with instructions for what to do with the will and reasons for making the will, the testator's actions in working with an attorney to draft the will, and signing the will in front of an uninterested party. Ultimately, courts must still look to other factors to determine whether a document was intended to be a will and whether the testator had capacity to execute the document.
The harmless error rule gives us a little more space to work with clients to get their critical estate planning documents completed right now. As shown by how the law has been interpreted in other jurisdictions, the new law does not make proper estate planning less of a factor. Instead, it arguably makes it all the more important to help underscore the testator's intent and meet the clear and convincing standard set forth in the statute.
Our attorneys are continuing to work with clients on their estate plans everyday through phone calls, emails, and remote online meetings. We are taking all the proper precautions for ensuring that we are protecting the health and safety of our clients as well as our staff when it comes time to sign the documents.
Should you have any questions about your estate plan, or if you would like to speak to an attorney today, call the office at 507-288-5567 or contact us on our website.
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