Will Formality Level One: Attested Wills

The classic Anglo‑American model for will formalities is the attested will, governed by a Wills Act tradition traceable to English sources (including the Wills Act of 1837) and implemented across modern jurisdictions in statute.

Under this model, the essentials are:

1. Writing: the terms must be reduced to a durable record,
2. Signature: the testator signs, and
3. Attestation: witnesses attest the testator’s signature.

These formalities are traditionally understood to serve several functions: (1) evidentiary reliability, (2) the “channeling” effect of standardizing procedures, (3) cautionary/ceremonial signaling, and (4) protection against coercion or fraud. See The Four Functions of Will Formalities.

Historically, the sharp edge of the Wills Act model was not the existence of formalities, but the doctrine of strict compliance: even an “innocuous” execution mistake could invalidate a will despite clear testamentary intent.

Sources

John H. Langbein, Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law, 87 Colum. L. Rev. 1 (1987):

The Formalities. - Every Anglo-American jurisdiction has a socalled Wills Act that prescribes the formalities for making a valid will. These statutes trace back to English models, in the Wills Act of 1837² and earlier. Our received English tradition recognizes a single mode of testation-the attested will, sometimes called the formal or witnessed will. The essentials are writing, signature, and attestation. The terms of the will must be in writing, the testator must sign it, and two witnesses must attest the testator's signature. A variety of further requirements can be found in the Wills Acts of various jurisdictions: rules governing the acknowledgment of a signature already in place, rules calling for the testator and the witnesses to sign in each other's presence, requirements about the positioning of signature, and many more.³

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^2. 7 Will. 4 & I Vict., ch. 26 (1837).

^3. For an up-to-date compilation see Coughlin, Will Requirements of Various States, ACPC Study No. 1, in ACPC Studies (American College of Probate Counsel, 1984) [hereinafter ACPC Study]. A well-known older compilation is Rees, American Wills Statutes, 46 Va. L. Rev. 613, 856 (1960).

Cornelius J. Moynihan & Sheldon F. Kurtz, Introduction to the Law of Real Property 239 n.22 (7th ed. 2020):

While state laws differ, at a minimum, a will must be in writing, signed by the testator, and witnessed by at least two witnesses. *See generally * Unif. Probate Code § 2-502(a) (imposing only minimal requirements). Many states, however, impose additional requirements such as that: testator declare the instrument to be the will, testator request the witnesses to act as such, and testator sign at the end. . . .

Further Reading

• UPC § 2-502 Execution; Witnessed or Notarized Wills; Holographic Wills
• UPC: A Will Must Be in Writing
• Will Formality Level Two: Holographic Wills