Wills and Codicils: A New Way to Express Testamentary Intent

Take-Away: Michigan, along with most other states, has adopted the Uniform Probate Code. One of the controversial provisions of that Code is the ability to treat and admit as a Will or Codicil a document or writing that has NOT been executed in compliance with Will execution formalities

Michigan Rule: The scope of this rule includes documents that do not bear the testator’s signature. See MCL 700.2503 and  In re Estate of Attia, 2016 Mich App LEXIS 2075 where an unsigned Will was admitted to probate. It also covers documents that are not titled  as ether a Will or Codicil, such as a deed. In re Estate of Southworth, 2011 Mich App LEXIS 1245.

Holographic Wills: Handwritten codicils to Wills can also be admitted to probate in Michigan, MCL 700.2502, but only so long  its material portions and signature are in the testator’s handwriting. This rule, which dispenses with the formalities normally required for a Will or Codicil’s execution, e.g. the use of subscribing witnesses can, however,  lead to some highly unusual ways in which testators express an amendment to their Will.

Example: The last week in June a New Jersey Court admitted to probate a handwritten Codicil to the decedent’s Will. While a handwritten amended codicil in itself is not unusual, what was different in this case was that the amended codicil was written entirely in the testator’s own blood. No reason was given why the testator chose to use his own blood to write the amendment, but he no doubt was clearly trying to make a statement about his final wishes by using his own blood to express his feelings. In re Will of Bradway, 2018 WL 3097060 (N.J. Superior Court Appellate Division, June 25, 2018)