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Is A Holographic Will Valid In Michigan?

by | May 11, 2020 | Wills, Trusts And Estates |


Typically, a last will and testament is valid in the State of Michigan if it includes ALL of the following:

  • It is in writing. MCL 700.2502(1)(a).
  • 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. MCL 700.2502(1)(b).
  • It is 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, or the testator’s acknowledgment of that signature or acknowledgment of the will is made by a notary public. MCL 700.2502(1)(c).

However, a last will and testament can qualify as a “holographic will” if the will is dated and if the testator’s signature and the document’s material portions are in the testator’s handwriting.  MCL 700.2502(2).  A will that meets the requirements of a holographic will is not required to be witnessed or acknowledged by a notary public.

Holographic wills come about for a variety of reasons.  A testator may be in a situation where he or she is trapped and death may be the likely result (e.g. stuck in a cave, adrift at sea) and there is no other opportunity to draft a witnessed last will and testament.  A testator may not have the means to see a lawyer to draft a valid will (e.g. in a nursing facility without family support or reclusive in his or her own home).  A testator may believe that he or she can get a sense of privacy away from friends and family members in drafting his own document without soliciting witnesses.  It is not uncommon for holographic wills to arise out of suicide notes.

Holographic wills face a number of unique issues:

  • A holographic will can be challenged by disgruntled heirs or devisees over uncertainty whether the document is in the testator’s handwriting because of the lack of witnesses.
  • If the holographic will was written under circumstances that suggest impending death, then it can be barred from admission to probate court due to coercion, duress or undue influence.
  • A holographic will may not be recognized in other states. For example, Wisconsin does not recognize a holographic will as valid so this can be problematic to residents in Michigan’s Upper Peninsula that may have estate assets in Wisconsin and ancillary probate is required.

However, a holographic will that doesn’t meet the technical requirements may still be valid.  “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.”  MCL 700.2502(3).  A proponent of a purported holographic will with defects (e.g. some parts are typed, signature is missing) may still be admitted to the probate court if it can be shown by clear and convincing evidence that the document was intended to be the testator’s last will and testament.

In Estate of Horton, __ Mich.App __; __ NW2d __ (Docket No. 339737)(2018), the decedent Duane Francis Horton II committed suicide at the age of 21.  Before he died, he left a handwritten journal entry directing the reader to look for his “farewell” on Evernote under the heading “Last Note”.  The Evernote entry was a typed document that was unsigned and contained “apologies and personal sentiments directed to specific individuals, religious comments, requests relating to his funeral arrangements, and many self-deprecating comments.”  There was also a paragraph directed to the distribution of his personal property to several family members, but it specifically makes no provision and leaves nothing to his mother (who would be his heir-at-law).

Mr. Horton’s mother contested the will, arguing that the document appears to be an attempt to make a holographic will and MCL 700.2503 might overlook minor technical defects but, in the case, NONE of the requirements of a holographic will were met.  The document was not dated, it was not in any of the testator’s handwriting and it was not signed, so it is too far removed from the statutory requirements to be considered as a will.  Mr. Horton’s conservator defended the will as personal representative.  The probate court found that the document constituted a will under MCL 700.2502.  Mr. Horton’s mother appealed.

The Michigan Court of Appeals agreed with the probate court and found that this electronic note constituted a last will and testament:

  • “Extrinsic evidence may also be used to discern a decedent’s intent, and considering the evidence presented at the hearing, we see no clear err in the trial court’s findings of fact regarding the circumstances surrounding decedent’s death and decedent’s intent for the electronic note to constitute his will. In this regard, as detailed by the trial court, the evidence showed that decedent’s handwritten journal entry directed the reader to an electronic, final “farewell.” Decedent left his journal and his phone containing the electronic note in his room; he then left the home and committed suicide. Given the surrounding circumstances, although the note was undated, the trial court reasonably concluded that the electronic note was written “in anticipation of [decedent’s] imminent death by his own hands.” The fact that decedent wrote a note providing for disposition of his property in anticipation of his impending death supports the conclusion that it was a final document to govern the disposition of decedent’s property after his death. Moreover, the evidence showed that decedent had, at best, a strained relationship with his mother, and the trial court reasoned that Jones’s testimony regarding her strained relationship with decedent “actually provides an understanding of the intent of [decedent] when he drafted the cell phone document.”  In other words, the nature of decedent’s relationship with his mother, when read in conjunction with his clear directive that none of his money go to his mother, supports the conclusion that decedent intended for the electronic note to govern the posthumous distribution of his property to ensure that his mother, who would otherwise be his heir, did not inherit from him. We see no clear error in the trial court’s factual findings, and the extrinsic evidence in this case strongly supports the conclusion that decedent intended the electronic note to constitute his will.  op. at p. 7-8 (internal citations omitted).”

Courts will go to great lengths to admit a will that doesn’t meet technical requirements provided that there is evidence it was the testator’s intent.  The Michigan Court of Appeals even admitted a will to probate recently that was not even signed by the testator.  See In re Estate of Attia, 317 Mich App 705; 895 NW2d 564 (2016).  However, holographic wills and other defective testamentary documents invite probate challenges at a higher rate due to more potential opportunities to defeat the document.  Whenever possible, a testator should make every effort to comply with the legal requirements under MCL 700.5202.  But if you are defending a holographic will or looking to challenge one that was purportedly drafted, then you need a skilled probate lawyer in your corner to aggressively pursue your legal position and protect your rights.

If you or a loved one have any further questions about wills, trusts and estates or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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