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Initiating A Will Contest (Part 3 of 5): Missing Legal Requirements

by | Oct 18, 2018 | Wills, Trusts And Estates |

Initiating a will contest part 3 of 5 missing legal requirements

Sometimes, we hear about someone who won their court case “on a technicality”. This usually means that someone was able to prevail in their argument not because of the merits but because of the application of some other legal rule. A person who was seriously injured in a car crash might have irrefutable evidence that the other driver was at fault, but the lawsuit gets dismissed since it was filed one day after the statute of limitations expires. The prosecutor has found enough narcotics to put away a notorious drug dealer for the rest of his life, but none of it can be admitted as evidence in court because the police officers illegally seized the drugs without a warrant.

The same kinds of “technicalities” are brought up in the probate court when someone tries to defeat the introduction of a will on the basis of defective construction. An heir might feel cheated that his or her bequest was reduced or eliminated by the decedent’s will and realizes that he or she would have inherited more through intestate succession. Without a strong argument for mental incapacity or undue influence, the heir examines the document closely with his or her attorney and tries to find a shortcoming in its construction that can cause the whole thing to get thrown out.

It is true that the law proscribes specific requirements for the construction of a will. MCL 700.2502(1) provides a will is valid only if it has all of the following:

  • It is in writing.
  • It is 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 signature can be a cross or mark in lieu of the testator’s name written in cursive. In re McIntyre Estate, 355 Mich 238; 94 NW2d 208 (1959)).
  • It is signed by at least two witnesses OR signed and acknowledged by a notary public that watched the testator either sign the will or direct someone else to sign the will in the testator’s name, presence and direction. (There is no requirement by statute that the witnesses have to sign the document in the eyesight of the testator, provided there is evidence that the testator was satisfied with the execution. In re Lane’s Estate, 265 Mich 539; 251 NW 590 (1933)).

Additionally, MCL 700.2502(2) allows for a will to be valid as a holographic will if it is dated, if it is signed in the testator’s handwriting and all of the document’s material portions are in the testator’s handwriting. A holographic will DOES NOT need to be witnessed or acknowledged by a notary. These types of wills tend to be executed when a testator is facing imminent death or is otherwise in a situation where the document cannot be executed normally.

Is the will is invalid if any of these conditions fail? Not quite. MCL 700.2503 provides that,”[a]lthough 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.”

What does this mean? If the proponent of a last will and testament lacking in legal requirements can prove the testamentary intent of its creator by clear and convincing evidence, then the probate court can overlook the defects and admit the document to probate. The following appellate cases are circumstances where MCL 700.2503 was applied to admit or decline writings intended to be wills:

  • In re Merritt’s Estate, 286 Mich 83; 281 NW 546 (1938) – The proponent filed as a last will and testament to probate a letter written by the decedent to a Kent County probate court judge indicating that he was of sound mind, that he declared it was his “last will and testament”, and that he leaves his entire estate to his brother “who has taken care of me all of these years.” Three people signed the letter as witnesses, and two of them testified to this act at the trial. The contestants argued that this letter is not a will on its face. The Michigan Supreme Court upheld the jury’s determination that this letter was intended to be the decedent’s last will and testament as it was supported by witness testimony that the decedent made contemporaneous statements supporting her intent and purpose. (NOTE: this case was decided before the passage of MCL 700.2503 in its current form in the year 2000).
  • In re Estate of Berg, unpublished per curiam opinion of the Court of Appeals, issued August 29, 2006 (Docket No. 268584) – The Michigan Court of Appeals upheld the admission of a will even where evidence revealed that the decedent signed the document at a different location than a signing witness and had never met him (contradicting the attestation clause that indicated they were in each other’s presence). The personal representative was able to produce the other witness who did recall that the testator signed the will despite being unable to remember every single detail of the event. This amounted to clear and convincing evidence that the decedent intended this document to be her last will and testament.
  • In re Estate of Windham, unpublished per curiam opinion of the Court of Appeals, issued January 26, 2010 (Docket No. 287937) – The Michigan Court of Appeals upheld the denial of a document to probate purporting to be a will. The probate court rejected a document that had sections crossed out and was marked up with handwritten comments where the author appeared to be “trying to organize her thoughts regarding how she wanted the will to read…”. The probate court and the court of appeals determined that this document was a draft of a will, not a will itself, which is NOT admissible to probate and not covered by MCL 700.2503.
  • In re Estate of Attia, 317 Mich App 705; __ NW2d __ (2016) – The Michigan Court of Appeals upheld the admission of a will to probate where the testator failed to sign the document, given that the proponent of the will established by clear and convincing evidence that the decedent intended the instrument to be a will.
  • In re Estate of Horton, unpublished per curiam of the Court of Appeals, issued July 17, 2018 (Docket No. 339737) – The Michigan Court of Appeals upheld the admission of an electronic document on the decedent’s smart phone as his last will and testament. Even though the document did not meet the formal requirements of a will, it was clearly written in contemplation of death because it “contain[ed] apologies and explanations for his suicide, comments relating to decedent’s views on God and the afterlife, final farewells and advice to loved ones and friends, and it contain[ed] requests regarding his funeral.” Additionally, the electronic document was clear on how property should be distributed.

For the proponent of the will, establishing testamentary intent in the probate court requires a knowledge of probate court procedures and the Michigan Rules of Evidence to be successful. For the contestant of the will, it is imperative to understand that the probate court is not constrained by strict statutory construction if the proponent meets his or her burden.

If you are contemplating a challenge to a will, or you are a personal representative needing to defend against such a challenge, then do not hesitate to contact the knowledgeable attorneys at Kershaw, Vititoe & Jedinak PLC for assistance with your probate matter.

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