The commentary to the Uniform Electronic Wills Act summarizes a widely cited framework for understanding the purpose of will formalities and why wills law traditionally requires formal execution procedures such as signatures and witnesses.
The E-Wills Act seeks to preserve the four functions served by will formalities, as described in John H. Langbein, Substantial Compliance with the Wills Act, 88 HARV. L. REV. 489 (1975) (citing Lon Fuller, Consideration and Form, 41 COL. L. REV. 799 (1941), which discussed the channeling function in connection with contract law, and Ashbel G. Gulliver & Catherine J. Tilson, Classification of Gratuitous Transfers, 51 YALE L.J. 1, 5-13 (1941), which identified the other functions). Those four functions are:
Evidentiary – the will provides permanent and reliable evidence of the testator’s intent.
Channeling – the testator’s intent is expressed in a way that is understood by those who will interpret it so that the courts and personal representatives can process the will efficiently and without litigation.
Ritual (cautionary) – the testator has a serious intent to dispose of property in the way indicated and the instrument is in final form and not a draft.
Protective – the testator has capacity and is protected from undue influence, fraud, delusion and coercion. The instrument is not the product of forgery or perjury.
Requirements, like will execution procedures, are not merely technical rules; they serve four different functions.
Understanding these functions also helps explain modern debates about doctrines such as the harmless error rule[1], which allows courts in some jurisdictions to excuse defects in execution when the purposes of the formalities have been satisfied.
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