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George F. Bearup, J.D. Senior Legal Trust Advisor

7-Aug-18

Electronic Wills Have Arrived in Michigan

Take-Away: In July the Michigan Court of Appeals published a decision that recognizes an electronic document as a valid will. In re Estate of Duane Francis Horton, Michigan Court of Appeals, No. 339737 (July 17, 2018.) A legitimate concern is that this court decision puts even more responsibility on the shoulders of a personal representative to search the decedent’s cell phones, computers, tablets, or even the ‘cloud,’ looking for a possible will or codicil.

Facts: The facts of this will contest case are tragic. Duane, age 21, committed suicide while living with a guardian. (He also had a conservator appointed for him at that time.) Duane was alienated from his mother. Prior to committing suicide, Duane left an undated, handwritten journal entry, in which he wrote: “My final note, my farewell is on my phone. The app should be open. If not look on evernote, “Late Note.”” The journal entry also supplied an email address and password for ‘evernote.’ On Duane’s cellphone was a long typed final message, which also included a full paragraph that addressed the distribution of Duane’s property after his death. Duane’s guardian offered the electronic ‘farewell’ note as his last will. Duane’s mother, who he effectively disinherited in his farewell note e.g. “Not my mother,” challenged the guardian’s offer of the electronic document to probate as a will, arguing that her son had died intestate. The probate court, and the Court of Appeals, both found Duane’s ‘farewell’ note to be a valid will, even though it was undated, not witnessed, and not signed by Duane. However,  there was clear and convincing evidence that the electronic note was intended by Duane to constitute his will which ultimately carried the day with the courts.

Background:

  • Valid Will: The Michigan Estates and Protected Individuals Code (EPIC) directs the formalities that must be followed to execute a valid Will. MCL 700.2502(1) spells out that the will must be in writing, signed by the testator or signed at his direction, and signed by at least two witnesses within a reasonable time after the testator signs the will. Obviously Duane’s electronic note did not comply since it met none of these formalities.
  • Holographic Will: But then there is an exception  as another statute contemplates a valid holographic will which does not comply with the prior will execution formalities, if the document is signed by the testator and its material portions are in the testator’s own handwriting,  it too will be admitted as a valid will. MCL 700.2502(2). Again,  the facts were clear that this statutory section could not be applied to Duane’s will either as Duane ‘farewell’ was typed and not in his own handwriting.
  • Statutory Exception: The probate court and the Court of Appeals found that Duane’s ‘farewell’ note was a will based upon the ‘catch-all’ EPIC provision, MCL 700.2503. I addressed this statute about a year ago with regard to another Michigan Court of Appeals decision, In re Estate of Attia, 317 Mich App 709 (2016), where the testator went to his lawyer to update his will, the changes were made by the lawyer to the typed will, but the testator died before the final revised will could be signed by him. The unsigned ‘draft’ of the revised will was admitted to probate in Attia, based on MCL 700.2503. That ‘exception’ statute says, in part:

Although a document or writing added upon a document was not executed in compliance with section 2502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute any of the following: (a) the decedent’s will; (b)..;(c) an addition to or an alteration of the decedent’s will;

  • Clear and Convincing Evidence: According to the Court’s interpretation of MCL 700.2503 in Horton, “any document or writing can constitute a valid will provided that the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute the decedent’s will.” Extrinsic evidence [meaning going beyond just the ‘four corners of the writing or document’] can be considered by the trial court to establish the decedent’s intent with regard to the document or writing. The Court in a footnote to its Horton decision stated: “MCL 700.2503 simply makes plain that other evidence clearly and convincingly demonstrating intent to adopt a will should not be ignored simply because the decedent failed to comply with formalities.”

Key to the Court’s finding of clear and convincing evidence was the decedent’s handwritten journal entry that contained the direction to the reader to the electronic ‘farewell’ note found in the decedent’s cell phone and the direction to look at ‘evernote’ coupled with its password. The Court found that the electronic note was written intended to be read, quoting the probate court which had found:  “The evidence was unrebutted that the deceased hand wrote a note directing the reader to his cell phone with the specific instructions as to how to access a document he had written electronically in anticipation of his imminent death by his own hands.” Perhaps the result in Horton can be more easily explained if the handwritten note is viewed as the decedent’s holographic will, which incorporated by reference the separate electronic communication, so that it was ‘covered’ under the holographic will statute MCL 700.2502(2).

MCL 700.2503 Unrelated to Will Formalities: In Horton the Court expressly rejected the mother’s argument that MCL 700.2503 can only to be applied to ‘relax’ the will execution formalities otherwise set forth in MCL 700.2502(1) and (2) (pertaining to holographic wills) but that statute is was not intended to completely abandon all will execution formalities. The Court refused to conflate MCL 700.2503 with the will execution formality provisions of MCL 700.2502(1) and (2), noting that MCL 700.2503:

“does not require a decedent to satisfy- or attempt to satisfy- any of the requirements for a holographic will under MCL 700.2502(2)….Instead, under MCL 700.2503, while the proposed will must be a document or writing, there are no specific formalities required for execution of the document, and any document or writing can constitute a will, provided that the proponent of the will presents clear and convincing evidence to establish the decedent intended the document to constitute his or her will.”

Uniform Probate Code: MCL 700.2503 is based upon Uniform Probate Code section 2-503, which is intended to excuse harmless error in complying with the formal requirements for executing or revoking a will. But the comments to 2-503 note that the types of harmless error that 2-503 was intended to address are matters such as when the testator through misunderstanding of the rules fails to obtain the signature of one or more witnesses. Critical to the Court’s interpretation of the ‘stand-alone’ role MCL 700.2503 in Horton is one of the Comments to the adoption of 2-503 of the Uniform Probate Code:

“While, in appropriate cases, Section 2-503 relaxes the requirement of section 2-502, to preserve and give effect to the testator’s intent, 2-503 applies only to a document or writing on a document. IT DOES NOT APPLY TO TESTAMENTARY INSTRUCTIONS IN OR ON OTHER MEDIA SUCH AS AN ADUTIOTAPE OR VIDEOCASSETTE.”

I would surmise that a cell phone note might be viewed as ‘other media’ by the drafters of the Uniform Probate Code.

Conclusion: Since Horton is a published decision, it is binding law in Michigan. It now means that any electronic communication might ultimately be interpreted as the decedent’s final will. We can expect that the costs of estate administration will increase if the fiduciary must now sort through all of the decedent’s electronic and digital life in search of wills or codicils to wills. One of the unintended consequences of living in the ‘digital age.’