Excusing Harmless Error in Will Execution: The Israeli Experience
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This paper will study the origins and evolution of Section 25 of Israel’s succession law that allow the courts to cure execution errors that would have otherwise been fatal under a strict compliance standard. Argues that American jurisdictions should adopt a Harmless Error Rule in the execution of wills. Part II describes the major role section 25 has played in the worldwide debate over the wisdom of granting courts the discretion to cure failings in the formal execution of wills. Part III recounts the genesis of the statute and how the Israeli Supreme Court construed the 1965 statute to not permit curing the absence of certain fundamental will formalities; contrary to the impression of the current English language literature, this doctrinal development was not reversed by a statutory amendment. Part IV brings American practitioners and scholars up-to-date on the significant amendment to section 25 that was enacted in 2004. The revised section 25 requires strict compliance with certain will execution formalities, but otherwise empowers courts to forgive defects if the court has no doubt that the document reflects the testator's genuine testamentary intent. Part V examines recent Israeli cases and suggests that the current Israeli approach of a dispensing power, with specified threshold requirements, generally protects testamentary intent and provides a persuasive model for American reformers.