Unsigned Wills May Be Admitted to Probate – What About Trusts?

Last month the Michigan Court of Appeals published a decision that came as something of a surprise, at least to an old-timer like me. Because the Court’s decision is published  it carries precedential weight and it must be followed by all probate courts in Michigan.

The facts are pretty straightforward. The testator had a longstanding  Will, along with several Codicils to that Will over the years. Upon the testator’s death a petition was filed with the probate court to admit an unsigned Will to probate that had been prepared at the testator’s direction but he had not signed the newly prepared Will prior to his death [he died the day that he was supposed to go to the lawyer’s office to sign his new Will.]

The probate judge denied the petition to admit to probate the unsigned Will. The probate judge relied on MCL 700.2502 (1)(a) which requires that for a Will to be valid, it must be signed by the testator. MCL 700.2502 provides, in part:

“ Except as provided in subsection (2) and in MCL 700.2503, 700.2506 and 700.2713, a Will is valid only if it is all of the following: (a) in writing; and (b) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction;”

The petition to admit the unsigned Will to probate was based upon the next EPIC section, MCL 700.2503,  which provides in part:

“Although a document or writing added upon a document was not executed in compliance with MCL 700.2502, 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.”

The probate judge felt that if the legislature had envisioned an unsigned Will being admitted to probate under MCL 700.2503, it would have expressly said so in that section, but it did not. In effect the probate judge felt that MCL 700.2503 was intended to override technical irregularities with a Will, e.g. irregularities with the witnessing of the Will [e.g. Silverstein v. Thomas, No. 268584, 2006 Mich. App. LEXIS 2620 (August 26, 2006)] not something as critical as the testator’s signature before two attesting witnesses.

The Court of Appeals reversed the probate court’s decision to deny the admission of the unsigned Will to probate, finding:

“The plain language of MCL 700.2503 establishes that it permits the probate of a will that does not meet the requirement of MCL 700.2502. One of the requirements of MCL 700.2502 is that the document must be signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.. MCL700.2502(1)(b). Accordingly a will does not need to be signed in order to be admitted to probate under MCL 700.2503 as long as the proponent of the will establishes by clear and convincing evidence that the decedent intended the document to be a will. To hold otherwise would render MCL 700.2503 inapplicable to the testamentary formalities in MCL 700.2502, which is contrary to the plain language of the statute. Therefore, MCL 700.2503 permits the admission of a will to probate that does not meet the signature requirement in MCL 700.2502(1)(b) as long as the proponent establishes by clear and convincing evidence that the decedent intended the document to be a will.”

Possible take-aways from this published decision, In re Estate of Sabry Mohamed Attia, No. 327925, published October 10, 2016, are the following:

1. An unsigned Will can be admitted to probate if there is clear and convincing evidence that the decedent intended the document to be a will;
2. An unsigned Trust or amendment to an existing Trust might be treated the same way; MCL 700.7402, titled Creating a trust; requirements, says nothing about a trust being signed by the settlor, just that there is ‘an intention to create a trust’;
3. EPIC’s provisions , which covers both wills and trusts,  are to be liberally construed to discover and make effective a decedent’s intent in the distribution of the decedent’s property; MCL 700.1201(b);
4. Extrinsic evidence can be admitted to determine whether the decedent intended a document to constitute his will [or trust]; In re Estate of Smith, 252 Mich App 120, 125 (2002); [the probate court in Attia  had denied a motion to waive the attorney-client privilege to gain access to the drafting attorney’s files, notes correspondence, drafts, and other file materials that pertained to the decedent; the Court of Appeals did not address whether this denial was reversed];
5. MCL 700.2503 does not apply to testamentary instructions in or on other media, like audiotapes; it is restricted by its words to apply only to ‘writings or documents’;
6. It may possible that a Will prepared via the Internet and electronically signed by the testator might pass muster with this broad interpretation of MCL 700.2503;
7. There may be a lot of unsigned draft Wills laying around a decedent’s home; in light of the Attia decision, there may be more unhappy beneficiaries who will now have the courage to file a petition to have an unsigned draft document admitted to probate as the decedent’s will.

In the mad-scramble to get a Will or Trust signed by a terminally ill client the Attia will provide some comfort to those who are charged with preparing the governing instrument or getting it properly signed and witnessed. I just wonder, or more accurately worry, if decision will invite more litigation in the probate courts. Just say’n.