From the Multnomah Lawyer: Tips from the Bench: Oregon’s Harmless Error Doctrine

Effective January 1, 2016, the Oregon legislature adopted ORS 112.238, which provides for an exception to will execution formalities. In effect, the statute adopts the doctrine of harmless error. The statute provides that a writing may be treated as if it complies with the formalities of a will’s execution, such as the signature of two witnesses, if certain requirements are met. Most importantly for the purposes of this article, the statute requires notice to certain “interested persons” and an affidavit supporting a finding that the decedent intended the writing to be his or her will.

Supporters of this change to the law saw it as a means for judges to determine the writing’s validity based on the decedent’s intent rather than their compliance with legal formalities. Those who opposed the revision raised concerns that the harmless error doctrine would cause a significant increase in litigation and would undermine the purpose of will formalities, i.e. to avoid the probate of fraudulent writings. As to the former concern, at least in Multnomah County, we have not seen a significant rise in “harmless error” litigation. Court staff estimate that we have seen fewer than 30 “harmless error” filings per year and have had fewer than five contested hearings since the statute was enacted. As to the concern relating to fraud, it is important to emphasize how the statutory framework is designed to avoid invalid writings being treated as a decedent’s true testamentary wishes.

Perhaps the most important protection is that the proponent of the writing must give notice to “interested persons,” who then have 20 days to file an objection to the petition. ORS 112.258(2). An “interested person” includes an heir of the decedent (i.e. people who would receive property if there were no will), any devisees of the “will,” (i.e. people who receive property under the terms of the writing), and any person asserting an interest in the estate, including anyone who is a devisee of a previous will. See ORS 113.035(5), (7), (8) and (9). Thus, the people with an interest in challenging the admissibility of a writing that was fraudulently created or was not intended to be a will have an opportunity under the statute to challenge the admissibility of the writing.

Another protection that is built into the law is that a judge is required to make a finding, based on clear and convincing evidence, that the writing was intended by the decedent as his or her will. ORS 112.238(4). The judge may make the finding after a hearing or based on affidavits. ORS 112.238(2). In either scenario, attorneys need to keep in mind what they are required to prove.

As the report by the Oregon Probate Code Work Group to the 2016 amendments to the probate code indicates:
In order to establish the decedent’s intent by clear and convincing evidence, the proponent of the document should have more evidence than simply the document itself. A piece of paper and an authenticated signature should not be sufficient to show the decedent’s intent. Additional evidence could include evidence of the circumstances of the creation of the document, testimony of people who heard the decedent discussing his intent to execute a will, testimony of people who saw the decedent prepare or sign the will, or other documents prepared by the decedent that described the will. Any circumstances that suggest fraud in the creation of the document will, of course, lead a court not to admit the document as a will.

Under the probate code, there is a strong argument to be made that simply presenting a writing with an affidavit asserting that the writing is the decedent’s will is not sufficient to demonstrate that the decedent intended the writing to be his or her will. If that were all that was required, the drafters could have approved of the admissibility of holographic wills.1 In summary, here are the Tips from the Bench:

  1. Be broad in your notice to “interested persons.” If a writing is admitted and a potential “interested person” has not been notified, then the 20-day period to file an objection to the petition does not commence against that person. In addition, if a person is notified and does not raise an objection in the 20-day period, they are precluded from contesting the lack of compliance with formalities of execution. ORS 112.038(4)(b).
  2. Submit your writings with affidavits that provide a basis for the judge to make his or her findings relating to the intent of the testator by clear and convincing evidence. You should include specific findings in the form of judgment you submit. Submitting a “statement of wishes” with an affidavit asserting that the statement is a will may not be enough.

Judge Henry began serving as the Chief Probate Judge in Multnomah County on January 1, 2019.

1 After Judge Henry submitted this article for publication, the Court of Appeals handed down Deaver v. Culver, 297 Or App 21 (2019). The Court in Deaver makes clear that the testator’s intent is evaluated as of the time the writing is created. In addition, the Court states that “the clear and convincing standard requires more than presenting the document itself or the document and an authenticated signature.” Id. at 27. Finally, they cite with approval the language in the Work Group Report included in this article.

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