Just when you think you know what the law requires, along comes a court decision that throws water on that conventional thinking. Such was the situation last fall when the Michigan Court of Appeals in In re Estate of Sabry Mohamed Attia (October 10, 2016) surprised many estate planners with a decision that permits an unsigned Will to be admitted to probate as the decedent’s Last Will and Testament.

The decedent had visited his attorney with the intent to make a new Will which he expressed to the attorney and also to other persons. Based on that visit the attorney prepared a Will and made arrangements for the Will to be signed in front of two witnesses as Michigan’s probate laws generally require. But the decedent died the same day that he was scheduled to sign the new Will. The unsigned and undated Will was subsequently offered to be admitted to probate by some of the decedent’s children. The probate judge refused to admit the unsigned, undated, un-witnessed Will to probate, noting:

‘If the [L]egislature wanted to permit an unsigned Will to be permitted [sic], then I think the statute would say, although a document was not executed or was not executed in compliance with the statute then that would have been more appropriate language…So I think it’s a bright line rule in Michigan and I certainly welcome the Court of Appeals to address it. So I am going to grant Summary Disposition [denying the admission of the offered, unsigned, un-witnessed Will to probate.]’

The Michigan Court of Appeals accepted the probate judge’s invitation. It started its analysis with the observation that Michigan’s probate laws ‘are to be liberally construed and applied to promote its purposes and policies, including to discover and make effective a decedent’s intent in the distribution of the decedent’s property.’

Michigan’s general statute with regard to the validity of a decedent’s Will requires that a Will be (i) in writing, (ii) signed by the testator, and (iii) signed by at least two individuals, each of whom signed within a reasonable time after he or she witnessed either the signing of the Will by the testator, or the testator’s acknowledgment of his or her signature or acknowledgment of the Will. If a Will does not comply with these requirements it will be treated as a holographic Will, whether or not it was witnessed, if it is nonetheless dated and if the testator’s signature and the document’s material portions are in the testator’s own handwriting. In either instance however the testator’s signature is a precondition to the Will’s validity.

Where the Court of Appeals took a left turn was its focus on another statute which is also a part of Michigan’s probate law. That statute provides an exception to the Will execution requirements just cited. That exception statute provides:

‘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…’

Based upon the wording the probate code’s exception statute, the Court of Appeals found that the signature of the testator, the date it was signed, and the signatures of the two subscribing witnesses  as required under the basic Will execution statute, were all unnecessary upon a showing of clear and convincing evidence of the testator’s intent. The upshot is that an unsigned, undated, un-witnessed document that purports to be a decedent’s Will might be still admitted to probate as the decedent’s Last Will, arguably replacing an earlier Will that was signed by the decedent which bear the decedent’s signature, date, and the signature of two witnesses.

The clear and convincing evidence burden of proof is illusive and whether that burden has been met will turn on each document’s own set of surrounding facts demonstrate the testator’s intent.  The clear and convincing evidence burden of proof is often described as ‘so clear, direct, and weighty and convincing as to establish a fact finder to come to a clear conviction without any hesitancy of the truth of the precise facts at issue.’ More than likely there will be differing opinions if there are enough facts to meet that standard of proof.

The facts of Attia will more than likely satisfy the high clear and convincing burden of proof since the decedent went to a lawyer for the express purpose of having a Will prepared, his intent was communicated to others besides the drafting attorney, the Will was prepared based upon Mr. Attia’s directions, and the Will was scheduled to be signed the day that Mr. Attia died. But what if the Will had been prepared, but Mr. Attia failed to come to the lawyer’s office for over six months before he died?  Did he still intend it to be his Last Will with the passage of that amount of time? What if a document sets forth Mr. Attia’s wishes about how he wanted his estate to be distributed on his death, perhaps a handwritten note that he made to himself, but that unsigned document was neither labeled a Will nor  was it prepared by an attorney- could this still be treated as a Will? How will we know if it is a testator’s Last Will if we can dispense with a required execution date?

A more common situation is when a lawyer prepares a rough draft of the Will that is based upon a discussion with his or her client, the draft Will is sent to the client to consider its terms and provisions, a few handwritten notes may be scribbled by the client in the margin of that draft Will, and the client dies with that unsigned draft Will in his or her possession. Can that draft Will be offered into evidence as the client’s Last Will and Testament, arguably replacing an earlier Will that was formally signed, dated, and witnessed by two individuals? Attia seems to say yes, assuming the clear and convincing burden of proof is met.

Unsigned draft Wills, and arguably any piece of paper that expresses some intent how assets might be distributed on an individual’s death, can now be offered as the decedent’s Last Will, which means that we can expect a lot more probate court litigation initiated by disgruntled heirs if they can locate some unsigned writing that they claim reflects the decedent’s final wishes. There is a reason why Michigan’s law requires that a Will be formally signed and dated by the testator in the presence of two impartial witnesses, in order to assure that the Will can survive subsequent challenges as to its reliability and finality. Apparently we have now evolved to a time when some evidence of testamentary intent will trump the execution formalities that are normally associated with a Will, which could easily become an invitation to fraud and manipulation by dissatisfied heirs. Until Michigan’s Legislature acts to overrule Attia, any draft Wills that are lying around the house should be destroyed if you are not certain that they reflect your final wishes as to the disposition of your estate, or who is put in charge of administering your estate.