Who Ever Said a Will Needed to be Signed?

Who Ever Said a Will Needed to Be Signed?

It might seem axiomatic that the Last Will and Testament of a decedent must be signed and witnessed by at least two individuals, near in time to simultaneously when signed by the decedent.[1] Estate planning is not fun, is sometimes stressful to confront, but, for all of us, it should be contemplated with well-informed counsel to arrange “for things the way we want them.” Nevertheless, many of an estate plan fail to be executed because of foiled last minute efforts to put things into place. Sometimes, death or mental incompetency play interference.

In a recent published opinion by the Michigan Court of Appeals, In re Attia Estate, 317 Mich App 705, ___ NW2d ___ (2016), as a matter of first impression, a three-judge panel reviewed a probate dispute among adult siblings regarding the prepared, but unexecuted, updated last will and testament of their deceased parent. The general rule of law requires a signature before witnesses. However, pursuant to MCL 700.2503,[2] effective as of April, 2000, the Michigan legislature enacted an exception to allow for admissibility of a will to probate if the proponent of a printed, but unsigned, document can establish, by clear and convincing evidence, that the decedent intended the document or writing to constitute a testamentary document. Since 2000, until this Attia case, there has been no case interpretation of that statute. In a review of the facts before the court, the Court of Appeals noted that (a) the decedent told reliable witnesses, including legal counsel, the substance of a new document that was being prepared to change an old will; (b) that the document was ready for execution as a will, when decedent met his demise: and (c) the burden is on a proponent to establish, by clear and convincing evidence, the testamentary intent of the decedent.

The test of “clear and convincing evidence” is a very heavy burden in civil cases, second only to “beyond a reasonable doubt” as required in criminal law cases. The Michigan Supreme Court has determined that, first, the evidence must be legally admissible within the laws of civil procedure; and secondly, the “clear and convincing evidence” standard means:

“. . . produc[ing] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue . . . Evidence may be uncontroverted, yet not clear and convincing. Moreover, evidence may be contradicted, yet still deemed clear and convincing.” In re Martin, 450 Mich 204, 227, 538 NW2d 399 (1995)

In Attia, the Court of Appeals reversed the dismissal of the “unsigned will” case, reinstated the case, and ruled that the proponent may proceed to conduct discovery, i.e., seek document production, interrogatories and depositions, to put forth “whether the decedent intended the document to constitute his will.”

[1] MCL 700.2502. Execution; witnessed wills; holographic wills.

(1) Except as provided in subsection (2) and in sections 2503, 2506, and 2513, a will is valid only if it is all of the following: (a) In writing. (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. (c) Signed by at least 2 individuals, each of whom signed within a reasonable time after he or she witnessed either the signing of the will as described in subdivision (b) or the testator's acknowledgment of that signature or acknowledgment of the will.

(2) A will that does not comply with subsection (1) is valid as a holographic will, whether or not witnessed, if it is dated, and if the testator's signature and the document's material portions are in the testator's handwriting.

(3) Intent that the document constitutes a testator's will can be established by extrinsic evidence, including, for a holographic will, portions of the document that are not in the testator's handwriting.

[2] MCL 700.2503 Writings intended as wills.

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) A partial or complete revocation of the decedent's will.

(c) An addition to or an alteration of the decedent's will.

(d) A partial or complete revival of the decedent's formerly revoked will or of a formerly revoked portion of the decedent's will.