A will provides a mechanism to dispose of property at death. But costly litigation—or worse, a will’s invalidation—often thwart this purpose. The law of probate is state-specific, which leaves jurisdictions with the burden of ensuring that their laws promote rather than defeat the purpose of probate—to honor the testator’s intent. Mississippi attempts to recognize this purpose by requiring strict compliance with the statutory requirements for creating a will. This “better safe than sorry” approach errs on the side of invalidity with the hope that denying a non-compliant instrument for probate will prevent fraud and other wrongdoing.
Despite its intention, Mississippi’s approach does not conform to the traditional idea of strict compliance; instead, the approach falls somewhere between strict compliance and the Uniform Probate Code’s (“UPC”) harmless error rule. Courts evaluate each situation on a case-by-case basis which has left attorneys and individuals across the state uncertain as to what the probate process requires. This Article calls for Mississippi to formally adopt the UPC’s harmless error rule and change Mississippi’s approach to will formalities from the current state of uncertainty to a more uniform standard.
"MATTER OF WILL OF RATCLIFF AND THE NOT-SO-HARMLESS ERROR: A CALL TO CHANGE MISSISSIPPI’S APPROACH TO WILL FORMALITIES,"
Mississippi College Law Review: Vol. 41:
2, Article 9.
Available at: https://dc.law.mc.edu/lawreview/vol41/iss2/9