ORS 112.238
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 under ORS 113.035 (Petition for appointment of personal representative and probate of will) 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)

Intentionally left blank —Ed.

(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; 2019 c.165 §32; 2021 c.390 §1]

Source: Section 112.238 — Exception to will execution formalities; petition; notice; written objections; hearing; fee, https://www.­oregonlegislature.­gov/bills_laws/ors/ors112.­html.

Notes of Decisions

Noncompliant will may be probated if clear and convincing evidence exists that decedent intended it to be decedent’s will, which requires examining intent of decedent at time of writing, not merely presentation of noncompliant will and authenticated signature. Culver v. Deaver, 297 Or App 21, 441 P3d 633 (2019)

Law Review Citations

95 OLR 337 (2017)

112.015
Net intestate estate 112.025
Share of surviving spouse if decedent leaves descendants 112.035
Share of surviving spouse if decedent leaves no descendant 112.045
Share of others than surviving spouse 112.047
Forfeiture of parent’s share by reason of termination of parental rights or desertion or neglect 112.049
Petition for forfeiture of parent’s share 112.055
Escheat 112.058
Preferences and presumptions in escheat proceedings 112.065
Passage by representation 112.077
Time of determining relationships 112.095
Persons of the half blood 112.105
Succession where parents not married 112.115
Persons related to decedent through two lines 112.135
When gift is an advancement 112.145
Effect of advancement on distribution 112.155
Death of advancee before decedent 112.175
Adopted persons 112.185
Effect of more than one adoption 112.195
References in wills, deeds and other instruments to accord with law of intestate succession 112.225
Who may make a will 112.227
Intention of testator expressed in will as controlling 112.230
Local law of state selected by testator controlling unless against public policy 112.232
Uniform International Wills Act 112.235
Execution of a will 112.238
Exception to will execution formalities 112.245
Witness as beneficiary 112.255
Validity of execution of a will 112.260
Reference in will to statement or list disposing of certain effects 112.265
Testamentary additions to trusts 112.270
Procedure to establish contract to make will or devise or not to revoke will or devise 112.272
In terrorem clauses valid and enforceable 112.275
Manner of revocation or alteration exclusive 112.285
Express revocation or alteration 112.295
Revival of revoked or invalid will 112.305
Revocation by marriage 112.315
Revocation by divorce or annulment 112.345
Devise of life estate 112.355
Devise passes all interest of testator 112.365
Property acquired after making will 112.385
Nonademption of specific devises in certain cases 112.395
When estate passes to issue of devisee 112.400
Effect of failure of devise 112.405
Children born, adopted or conceived after execution of will 112.410
Effect of general disposition or residuary clause on testator’s power of appointment 112.415
Persons not entitled to estate of testator 112.455
Definitions for ORS 112.455 to 112.555 112.457
Application to abuser 112.465
Slayer or abuser considered to predecease decedent 112.475
Jointly owned property 112.495
Reversions, vested remainders, contingent remainders and future interests 112.505
Property appointed 112.515
Proceeds of insurance on life and other benefit plans of decedent 112.525
Proceeds of insurance on life of slayer or abuser 112.535
Payment by insurance company, financial institution, trustee or obligor 112.545
Rights of persons without notice dealing with slayer or abuser 112.555
Final judgment as conclusive 112.570
Definitions for ORS 112.570 to 112.590 112.572
Requirement of survival 112.578
Construction of survivorship provisions in governing instruments 112.580
Co-owners with right of survivorship 112.582
Evidence of death or status 112.586
Exceptions 112.588
Protection of payors and other third parties 112.590
Protection of bona fide purchasers 112.685
Dower and curtesy abolished 112.705
Short title 112.715
Application to certain property 112.725
Rebuttable presumptions 112.735
One-half of property not subject to testamentary disposition or right to elect against will 112.745
Proceedings to perfect title 112.755
Who may institute proceedings 112.765
Rights of purchaser 112.775
Application and construction 112.800
Definition for ORS 112.800 to 112.830 112.805
Exclusive manner of disposing of wills 112.810
Duties of custodian of will 112.815
Conditions for disposal of will 112.820
Procedure for destruction of will 112.825
Liability for destruction of will 112.830
Court may order delivery of will
Green check means up to date. Up to date

Current through early 2024

§ 112.238’s source at oregon​.gov