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Michigan Is First State To Recognize ‘Digital Will’ As Valid

Posted on Wednesday, September 26, 2018

Michigan is on the cutting edge when it comes to probate law, recently becoming the first state in the nation to recognize a note left on a cell phone as a valid “digital will.”

In a published decision, In re Estate of Horton (Docket No. 339737), the Michigan Court of Appeals ruled the decedent’s testamentary wishes, which were digitally stored on his cell phone, satisfied the requirements for a valid will under the Estates and Protected Individuals Code (EPIC).

“[W]e find no error in the trial court’s determination that decedent intended for the electronic document in question to constitute his will,” the Court of Appeals wrote.

In reaching this conclusion, the Court of Appeals considered both the cell-phone note itself and extrinsic evidence, finding there was “clear and convincing evidence” the decedent “intended the electronic note [on his cell phone] to constitute his will, and thus the document constitutes a valid will under MCL 700.2503.”

‘Last Note’ Left On Cell Phone

The decedent, who committed suicide, left a handwritten entry in his journal that said: “My final note, my farewell is on my phone. The app should be open. If not look on evernote, ‘Last Note.’” The journal entry also provided an email address and password for the Evernote app.

The “Last Note” found on the decedent’s cell phone was typed and included the decedent’s full name at the end. The note included apologies and personal sentiments, funeral requests and other statements. It also included statements about the distribution of the decedent’s property, including: “If at all possible, make sure that my trust fund goes to my half-sister Shella, and only her. Not my mother.”

The decedent had been subject to a conservatorship during his lifetime and Guardianship and Alternative, Inc. (GAI) served as his court-appointed conservator. Upon the decedent’s death, GAI petitioned the Berrien County Probate Court to be appointed as personal representative of the estate. GAI asserted the cell-phone note constituted the decedent’s last will and testament. The decedent’s mother, however, also filed a petition for appointment as personal representative, claiming her son died intestate (without a will) and that she was his sole heir.

The Probate Court held that GAI presented clear and convincing evidence the decedent intended the digital note on his cell phone to constitute his will. In so ruling, the Probate Court relied on MCL 700.2503, which says:

“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.”

On appeal, the decedent’s mother claimed the note was a failed attempt to make a holographic will. She argued the Probate Court erred by relying on MCL 700.2503 to create a will, when the cell-phone note met none of the requirements for a holographic will.

‘Distinctly Testamentary In Character’

The Court of Appeals held the note on the decedent’s cell phone was, indeed, a valid will.

According to the Court of Appeals, the law in this area “must be liberally construed and applied to promote its purposes and policies,” and this includes effectuating a decedent’s wishes regarding the distribution of his property.

“In this case, it is undisputed that decedent’s typed, electronic note, which was unwitnessed and undated, does not meet either the formal requirements for a will under MCL 700.2502(1) or the requirements of a holographic will under MCL 700.2502(2),” the Court of Appeals explained. “Instead, the validity of the will in this case turns on the applicability of MCL 700.2503 and whether the trial court erred by concluding that GAI presented clear and convincing evidence that decedent intended the electronic document to constitute his will.”

The Court of Appeals then addressed the mother’s argument that the document was a failed holographic will. “In particular, contrary to [her] attempt to conflate MCL 700.2503 and the holographic will provision, MCL 700.2503 is an independent exception to the formalities required under MCL 700.2502(1), which does not require a decedent to satisfy – or attempt to satisfy – any of the requirements for a holographic will under MCL 700.2502(2),” the Court wrote. “To require a testator to meet any specific formalities notwithstanding MCL 700.2503, ‘would render MCL 700.2503 inapplicable to the testamentary formalities in MCL 700.2502, which is contrary to the plain language of the statute.’ … Instead, under MCL 700.2503, while the proposed will must be a document or writing, there are no specific formalities required for execution of the document, and any document or writing can constitute a will, provided that the proponent of the will presents clear and convincing evidence to establish that the decedent intended the document to constitute his or her will.”

Next, the Court of Appeals turned to the facts of the case, finding the decedent intended the note to be his will. In particular, the Court noted that:

  • a will need not be written in a particular form or use any particular words.
  • in order for a document to be considered a will, it must evince testamentary intent.
  • the document must be final in nature.
  • the question is whether the person intended the document to govern the posthumous distribution of his or her property.
  • extrinsic evidence may be considered to show that a decedent intended a document to constitute a will.

“Reviewing the language of the document de novo, … we agree with the trial court’s conclusion that the document expresses decedent’s testamentary intent,” the Court of Appeals stated. “On the face of the document, it is apparent that the document was written with decedent’s death in mind; indeed, the document is clearly intended to be read after decedent’s death. … In what is clearly a final note to be read upon decedent’s death, the document then clearly dictates the distribution of his property after his death. … In short, the note is ‘distinctly testamentary in character,’ … and the document itself provides support for the conclusion that decedent intended for the note to constitute his will.”

Although the note was undated, given the surrounding circumstances, the note was written “in anticipation of [the decedent’s] imminent death by his own hands,” the Court of Appeals said. “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.”

When considering both the note and the extrinsic evidence that was presented, the Court of Appeals held the Probate Court properly concluded that GAI presented clear and convincing evidence the decedent intended the note to constitute his will, “and thus the document constitutes a valid will under MCL 700.2503.”

Cell Phone Will: A Good Idea?

While the Court of Appeals validated the decedent’s will in Horton, is it really a good idea to create a will with a cell-phone app and then store it on the phone?

Probably not. Here are a few reasons why:

  • the cell-phone document may never be discovered at all.
  • if the document is found, there is a risk that it might be altered.
  • if the document is located, it will likely be challenged in court, which will cost time and money, and may result in the court finding it was not your last will and testament.

From a legal standpoint, it is also worth noting that the Horton decision helps clarify the provisions of EPIC. Probate practitioners have often believed that MCL 700.2503 is a statute aimed at simply fixing minor, technical defects in documents that would otherwise be allowed as holographic wills.

However, the Horton Court seems to say that MCL 700.2503 is much more than that. According to Horton, MCL 700.2503 provides an independent, somewhat informal process for upholding a decedent’s testamentary wishes – as long as there is clear and convincing evidence of intent.

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