Formalities of Withdrawal of a Will and the Ways to Avoid Them under American Law; A Reflection on Iranian Law

Abstract

In most legal systems of the world, the creation of a ‘will’ requires the observance of certain formalities. Since these formalities show the genuine intention of the testator, hence they prevent fraud, facilitate and regulate legal proceedings related to wills, and they have always been paid attention by law-makers. Based on this, Iranian law only recognizes official, self-written (handwritten), and secret wills as legally effective wills. Similarly, in American law, the legal validity of a will requires to be formal, self-written (handwritten), or notarized. The question is raised as to whether the withdrawal of the will requires the observance of formalities or not. In other words, if the purpose of stipulating formalities in the phase of creation of a will is to protect the intention of the testator, prevent the deception of forgers, facilitate and regulate the legal proceedings concerning the will, then, do not these aims require that the withdrawal should also be based on formalities? In this article, an attempt is made to answer this question with a descriptive-analytical method. The conclusion is that in Iranian law, wording of Article 838 of the Civil Code, the silence of the Probate Code, and Imamiya jurisprudential views indicate that the withdrawal does not require formalities. However, the above-mentioned view, by an accurate analysis of Article 838 and considering functions of formalism, still have an aura of ambiguity. In contrast, the position of American law is evident; the legal validity of withdrawal depends on the satisfaction of certain formalities. Nevertheless, since the formalities of withdrawal lead to the ignorance of the testator’s intention in some cases, solutions have been provided to avoid them. These solutions have not been accepted yet, due to their weaknesses.

Keywords

• formalities
• revocation in writing
• revocation by conduct
• testator
• formalism