2017 ORS 112.238¹
Exception to will execution formalities
  • petition
  • notice
  • written objections
  • hearing
  • fee

(1) Although a writing was not executed in compliance with ORS 112.235 (Execution of a will), the writing may be treated as if it had been executed in compliance with ORS 112.235 (Execution of a will) if the proponent of the writing establishes by clear and convincing evidence that the decedent intended the writing to constitute:

(a) The decedent’s will;

(b) A partial or complete revocation of the decedent’s will; or

(c) An addition to or an alteration of the decedent’s will.

(2) A writing described in subsection (1) of this section may be filed with the court for administration as the decedent’s will pursuant to ORS 113.035 (Petition for appointment of personal representative and probate of will). The proponent of the writing shall give notice of the filing of the petition to those persons identified in ORS 113.035 (Petition for appointment of personal representative and probate of will) (5), (7), (8) and (9). Persons receiving notice under this subsection shall have 20 days after the notice was given to file written objections to the petition. The court may make a determination regarding the decedent’s intent after a hearing or on the basis of affidavits.

(3) The proponent of a writing described in subsection (1) of this section may file a petition with the court to establish the decedent’s intent that the writing was to be a partial or complete revocation of the decedent’s will, or an addition to or an alteration of the decedent’s will. The proponent shall give notice of the filing to any personal representative appointed by the court, the devisees named in any will admitted to probate and those persons identified in ORS 113.035 (Petition for appointment of personal representative and probate of will) (5). Persons receiving notice under this subsection shall have 20 days after the notice was given to file written objections to the petition. The court may make a determination regarding the decedent’s intent after a hearing or on the basis of affidavits.

(4)(a) If the court determines that clear and convincing evidence exists showing that a writing described in subsection (1) of this section was intended by the decedent to accomplish one of the purposes set forth in subsection (1) of this section, the court shall:

(A) Prepare written findings of fact in support of the determination; and

(B) Enter a limited judgment that admits the writing for probate as the decedent’s will or otherwise acknowledges the validity and intent of the writing.

(b) A determination under this subsection does not preclude the filing of a will contest under ORS 113.075 (Will contest), except that the will may not be contested on the grounds that the will was not executed in compliance with ORS 112.235 (Execution of a will).

(5) The fee imposed and collected by the court for the filing of a petition under this section shall be in accordance with ORS 21.135 (Standard filing fee). [2015 c.387 §29; 2016 c.42 §17]

Law Review Cita­tions

95 OLR 337 (2017)

1 Legislative Counsel Committee, CHAPTER 112—Intestate Succession and Wills, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors112.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 112, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano112.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.