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Unsigned Will May Sometimes Be Admitted to Probate

Posted on Thursday, May 17, 2018

The probate Court can admit an unsigned will to probate if the proponent of the will establishes, by clear and convincing evidence, that the decedent intended the document to be his or her will. The Michigan Court of Appeals (MCOA) reached this decision in a published opinion (In re Estate of Sabry Mohamed Attia).

Facts: Sabry Attia, father of 4 children, died on Sept. 11, 2014. Attia executed a will on July 8, 1986 and two codicils to the will, one on February 17, 2009 and the other on February 1, 2013. Appellee Mayssa, personal representative, filed a petition to probate the July 1986 will and two codicils. Appellant, Marvat, filed an objection to the probate of the July, 1986 will and codicils and a petition to admit an unsigned will to probate.

Marvat claimed the decedent directed his attorney, to draft a new will and arranged to sign it on September 11, 2014, the day he died. Marvat argues that although MCL 700.2502 requires a will to be signed, MCL 2503 provides an exception to the signature requirement if the supporter of the will shows by clear and convincing evidence that the decedent intended for the document to be his will.

The Wayne County Probate Court granted Mayssa’s Motion for Summary Disposition stating “I think that the language in 2503, relates to a document which is executed but is flawed in the execution. So, I think it’s a bright line rule in Michigan and I certainly welcome the Court of Appeals to address it.”

The COA Did Address It Stating:

  1. MCL 700.2503 permits the probate of a will that doesn’t meet the requirements of MCL 700.2502.
  2. One of the requirements is that the will be signed by testator or a person chosen by the testator, in the testator’s presence and at his direction. (MCL 700.2502(1)(b)
  3. Thus, section 2503 allows admission of a will that doesn’t meet the signature requirement in section 2502 as long as the proponent establishes by clear and convincing evidence that the decedent intended the document to be a will.

The COA didn’t find a Michigan case on point, but did find persuasive a Superior Court of New Jersey, Appellate Division, decision concluding that a New Jersey statute containing nearly identical language to Michigan permits the probate of a will without a signature, but with clear and convincing evidence that the testator intended the document to be a will.

The COA reversed the lower court and sent the matter back for further proceedings. 

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