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Video Wills in Michigan: Are They Enforceable?

A common trope in cinema for will readings is to have the decedent's surviving family appear in a lawyer's office, that attorney puts a video into the DVD player, and the decedent appear on a TV screen to personally address the beneficiaries and tell them what their legacies are. Why portray will readings in this way? Well, it is simply more dramatic to watch. An attorney reading dry legal text from a stack of papers is not particularly exciting to watch or listen to.

Can I make my final affairs more exciting? Can I make an enforceable video will in Michigan? Unfortunately, the answer is no.

MCL 700.2502(1) lays out the requirements for a valid will that must include all the following:

1. In writing.

2. 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.

3. Signed by at least two witnesses who witnessed the testator's signature or by a notary public that acknowledged the witnessing of the testator's signature.

Some exceptions to these rules include the testator executing a "holographic will" with or without signatures, which is valid under MCL 700.2502(2) provided that the document is signed, dated, and the material portions are entirely in the testator's handwriting. MCL 700.2503 provides that a document or writing purporting to be a will but is lacking one of the requirements in MCL 700.2502(1) may still be admitted to probate if the proponent of that document or writing can prove by clear and convincing evidence that it was intended to constitute the decedent's will or an addition or alteration of such. The Court of Appeals recently upheld the validity of an unsigned will under this "clear and convincing evidence" standard in Estate of Attia, 317 Mich App 705; __ NW2d __ (2016) when the petitioner was able to prove that it constituted the decedent's intentions.  It appears that courts will go to great lengths to give legitimacy to a person's final wishes.

However, all of the rules in the Michigan Estates and Protected Individuals Code ("EPIC") explicitly require that any valid will, whether meeting all statutory standards or not, be a "document or writing". This requirement completely precludes any oral or video wills. Although the decedent's video recording may assist in interpretation or elaboration of an existing paper will, it does not replace it. A video recording alone is invalid, and the decedent will be considered to have died intestate (without a will). As a result, despite the good intentions behind the video, the decedent's estate may be distributed in a way completely inconsistent with his or her wishes.

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