In Michigan, a valid last will and testament requires all of the following:
- It must be in writing. MCL 700.2502(1)(a).
- It must be 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 must be signed by at least two witnesses, 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. MCL 700.2502(1)(c).
In addition, 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 by two witnesses or acknowledged by a notary public.
The common element for all valid wills in Michigan is that it must be in writing and must be signed by the testator or at his direction. Does the testator have to write out his or her entire name? What if the testator only signs with an “X”? What are the rules for someone else signing the will for the testator?
The reality is that the form or structure of the signature is not as important for validity as the other requirements. Probate courts will go out of their way to admit a will, despite technical errors, if the testator’s intent can be proven.
VALID SIGNATURES AND MARK FROM THE TESTATOR
According to Michigan Civil Jury Instruction 170.12, “[i]f the decedent makes a cross or mark as his or her signature, then the will is signed in the manner required by law.”
In the case In re McIntyre Estate, 355 Mich 238; 94 NW2d 208 (1959), the testator (with the scrivener’s assistance) had signed his will with an “X”, both at the place where the insertion of names had been made on the document and on the signature line above his name. Three people witnessed the signature and the words “his mark” were inserted by the scrivener. The will was later contested and one of the questions submitted to the court was “whether or not the will had been executed in accordance with the statutory requirements when the decedent executed the will with a “X” without his name being written in.” The Michigan Supreme Court determined that “[i]t would appear that the testimony of the 3 witnesses left no question about the execution of the instrument so far as the mark is concerned.” 355 Mich at 247.
Michigan courts have made it clear that, as long as evidence supports the execution of the document by the testator, it doesn’t matter if the signature was the testator’s handwritten name or a mark like an “X”.
WILLS SIGNED BY ANOTHER PERSON FOR THE TESTATOR
In addition to the testator’s own signature, a last will and testament can also be signed “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). According to Michigan Civil Jury Instruction 170.12, “[i]f the decedent directed another person to sign his or her will and that other person signed the decedent’s name in the decedent’s conscious presence, then the will is considered to be signed by the decedent in the manner required by law.”
What does “conscious presence” mean? In the case In re Lane’s Estate, 265 Mich 539; 251 NW 590 (1933), the Michigan Supreme Court was confronted by the following facts from a will contest:
“[I]t appears that the instrument, purporting to be the last will and testament of Edward J. Lane, deceased, was executed by the testator while lying ill in one of the hospitals of the city of Detroit; that the instrument had been prepared by some one other than the testator; that on the 15th day of January, 1932, while lying in bed in one of the private rooms of the hospital, the testator signed the instrument as and for his last will and testament in presence of his attending physician, Dr. W.W. Babcock, and one of the nurses assigned to the case, Esther Eilber, and where they could see him sign his name thereto. Dr. W.W. Babcock and Esther Eilber, at testator’s request, signed their names to said instrument as witnesses; that there being no table or other convenience in testator’s room to use for that purpose, they went to a table in the corridor of the hospital, some 30 feet from the bed where testator was lying, and temporarily out of his sight, and signed their names to said instrument as witnesses thereof; that the signing of the instrument by the testator and by the witnesses was one transaction and all in one setting; that no question is raised that the said instrument proffered for probate is not the instrument executed by the testator and signed by the witnesses, or that it does not express his desire in relation to the disposition of his property. It also appears in evidence that after the witnesses had signed the will it was shown to the testator with the names of the witnesses thereon; that he asked for his glasses and put them on, and expressed his satisfaction therewith.” 265 Mich at 540-541.
The Michigan Supreme Court adopted a liberal interpretation of what “conscious presence” means:
“We are here concerned with a will executed by a testator in the presence of two witnesses who, in the absence of a convenient place in the same room to subscribe their names as witnesses thereto, do so on a desk in an adjoining corridor about 30 feet from the bed in which the testator was then lying. It may fairly be inferred that he was conscious of and understood the reason why they left the bedroom and what they were doing when absent therefrom. They were within his “call,” and within his “immediate nearness or vicinity.” There is no claim, or even intimation, that the instrument signed by them was not in fact that executed by the testator. After they had subscribed their names as witnesses, it was shown to him and, after examining it, he expressed his satisfaction therewith. The injustice of rejecting the instrument as his will, when compared with any danger of imposition on him by declining to construe the language of the statute more strictly, is apparent.” 265 Mich at 546-547.
Probate courts have construed “conscious presence” liberally ever since. They focus on evidence of the testator’s consciousness regarding what was occurring as opposed to the testator’s physical proximity or actual viewing of the signing. This is decided on a case by case basis but, once again, probate courts will try to ascertain the testator’s intent in determining validity rather than the technical requirements.
MICHIGAN COURTS HAVE UPHELD WILLS WITHOUT SIGNATURES ALTOGETHER
MCL 700.2503(a) provides that,”[a]lthough a document… was not executed in compliance with [the Estates and Protected Individuals Code], 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… “[t]he decedent’s will.” This means that wills that have defective signature requirements can still be admitted to probate if the proponent provides clear and convincing evidence that the documents was the testator’s intent.
In the published case In re Estate of Attia, 317 Mich App 705; 895 N.W.2d 564 (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 the unpublished case 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 this electronic document did not meet the formal requirements of a will (including no signature), 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.”
Clearly, the manner that a last will and testament is signed is less important that the evidence that the testator intended for this document to reflect his or her final wishes.
WHAT IS THE BEST PRACTICE FOR SIGNING A WILL?
While probate courts are willing to admit a will to probate that does not meet the technical signature requirements, it is wise to comply with standard procedures as much as possible to avoid the risk of your will being defeated in a contested probate proceeding after your death. The following is recommended:
- Sign your last will and testament in the manner that you place your signature on other legal documents. If the allegations are that your signature is forged, a handwriting expert can compare your will’s signature to your other known signatures to verify it was your handwriting.
- Make sure your will is witnessed by persons that can be located after your death. These witnesses can establish that you are the person that signed the document or that you directed someone else to sign the document for you. You should also consider a self-proving will where the testator and both witnesses have their signatures notarized and it makes the will much harder to contest since there is a legal presumption of validity that the contestant must overcome.
- Ensure that your last will and testament, after signature, is put in a location that is not easily accessible by others. Consider having your last will and testament placed at the probate court in your county of residence for safekeeping. The will cannot be accessed by others unless they can produce evidence that you are deceased. If there are few opportunities for access by others, then it will be harder for a contestant to establish that the document is forged.
Our office is ready and able to handle all of your estate planning needs. We can ensure that your last will and testament meets all of the legal requirements under the law so that your final wishes can be carried out in the manner that you desire.
If you have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.