## Facts

- James Mylen Hall executed a formally valid will in 1984.
- Years later, Hall and his wife sought to replace the 1984 will with a joint will prepared by an attorney.
- Hall and his wife met with the attorney, reviewed the draft, and made handwritten changes reflecting mutually agreed terms.
- Hall asked whether the draft could operate as a valid will until a final version was prepared; the attorney advised it would be valid if both spouses signed it and the attorney notarized it.
- Hall and his wife signed the draft in the attorney’s office, and the attorney notarized it, but no attesting witnesses were present.
- The signed document contained an express clause revoking all prior wills.
- After signing, Hall instructed his wife to destroy the 1984 will, and she did so.
- Hall died before a revised will could be executed with the statutory witness formalities.
- The surviving spouse offered the joint will for probate; Hall’s daughter objected, arguing the joint will was invalid for lack of witnesses and seeking to apply the earlier will despite its destruction.
- The district court admitted the joint will to probate; the daughter appealed.

## Issues

1. Whether an unwitnessed will that fails Montana’s two-witness execution requirement may be admitted to probate under the harmless-error statute upon clear and convincing evidence that the decedent intended the document to be his will and to revoke prior wills.

## Decision

- The Montana Supreme Court affirmed admission of the joint will to probate.
- The court held that the harmless-error statute applies to execution defects including the absence of attesting witnesses.
- The court concluded the proponent proved by clear and convincing evidence that Hall intended the signed, notarized draft to operate as his will, including its revocation of the 1984 will.

## Legal Principles

- A defectively executed testamentary document may be treated as a will if the proponent proves by clear and convincing evidence that the decedent intended the document to constitute the decedent’s will.
- The harmless-error dispensation extends to serious execution defects, including noncompliance with witness-attestation requirements, when the statutory evidentiary standard is met.
- Clear and convincing evidence of testamentary intent may be shown through a signed document containing an express revocation clause, execution steps taken with counsel, reliance on counsel’s advice about interim validity, and post-execution conduct consistent with revocation (including destruction of a prior will).
- A testator may intend a document to function as an operative will even if the testator anticipates later revisions or a more polished final version.

## Conclusion

The court validated an unwitnessed joint will under Montana’s harmless-error statute because the record showed, by clear and convincing evidence, that Hall intended the signed and notarized draft to serve as his will and to revoke prior wills, as confirmed by the document’s revocation clause, counsel-assisted execution, and Hall’s instruction to destroy the earlier will.


In re Estate of Hall, 2002 MT 171, 310 Mont. 486, 51 P.3d 1134 (Mont. 2002)