SOLVING THE “PROBLEM” OF WILLS FORMALITIES IN THE MODERN POST-PANDEMIC SOCIETY: CAN THE ENDLESS DISCUSSION BE CONCLUDED?

Abstract

The last will as an instrument of succession law is one of the means of disposing property upon death. Around the world particular legal regulations of American, Australian, European or other countries generally provide for different specific formal requirements for the valid preparation of will. The inappropriateness of this kind of solutions was shown, among others, during the COVID-19 pandemic, when the need for making last wills has increased significantly and has rarely been executed in a manner consistent with the formalities. Reflecting the intent of a testator, often expressed informally, seems to be a more important value of the law of succession than respecting the formalities. This has already been noticed in some countries, especially in common law jurisdictions in Australia and America, where solutions based on substantial compliance doctrine or its variations, contrary to the pan-European strict compliance standard, were adopted. These solutions, however, do not take into consideration plenty of circumstances that may occur in the testation practice and are indifferent to new possible ways of making wills. Meanwhile, the range of mechanisms and proposals for statutory changes in the area of wills formalities is constantly growing. However, there are no proposals to cover all possible legislations in this area, as regards Anglo-American, European or other countries. Yet such a solution seems possible and desirable in order to reconcile the doctrines of substantial compliance and strict compliance. This proposal is the subject of this study.