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“Cellphone Wills – Is This a Good Idea?”

by Aug 6, 2018


            You may have recently read or heard about the decision of the Michigan Court of Appeals issued in mid-July, 2018. It held that a “Final Note” which was found on the decedent’s cellphone did, indeed, constitute a valid and enforceable Will, following his suicide.   This decision follows that of another Court of Appeals panel from late 2016 (In re Estate of Attia) which held that the decedent did not have to sign his Will in order to have a valid binding instrument.  Thus, it appears that the Appellate Courts of the State of Michigan are continuing down the slippery slope as to what may constitute a valid Will.

To be clear, the facts in the recent case (In re Estate of Horton) seemed to strongly indicate that the electronic document that the decedent left behind, and referred to in an undated handwritten journal entry, did express his last wishes.  However, it was neither signed by him, witnessed by two witnesses, in his own handwriting nor have the material portions in his own handwriting.  In addition, the electronic note was not dated. These are all statutory requirements. Nevertheless, the Court essentially held that any document can constitute a Will and that even though the statutory formalities associated with the execution of a Will were not followed, the document could still stand as his Will.

As a refresher, the primary purpose of a Will is to indicate the disposition you would like to make of your property at the time of your death.  In order to make sure your wishes are carried out, the Will must be filed with the County Probate Court and “probated.”  In probate, the Court will appoint someone (typically the person you named) as Personal Representative (formerly known as an “Executor”) to carry out your desires through the powers given to them under your Will and the Probate Code (known as the Estates and Protected Individuals Code or “EPIC” in the State of Michigan).

In order for a Will to be admitted to probate to start this process, it typically has to be properly executed.  Section 2502 of EPIC outlines the requirements in order to have a binding and admissible Will.  Under this Section of EPIC, the Will or document must be in writing, signed by the testator (the Will-maker), and then signed by at least two individuals who witnessed the signing of the Will.  It is also possible to eliminate the witness requirement if you draw up a holographic Will.  A holographic Will is a document prepared by an individual for him or herself, where the material portions of the document are in the testator’s handwriting that the testator then dates and signs.

Section 2503 of EPIC states that although a document was not executed in compliance with Section 2502, it can be treated as if it was properly executed (and thus admitted to probate as the decedent’s Will) if the proponent of the document establishes by clear and convincing evidence that the decedent intended the document to constitute his Will.  That is how the unsigned Will in the Attia case was admitted.  Now, the Court has gone a step further and indicated that a document that was never in the decedents handwriting, was not witnessed, was not dated, and was never signed, and is found in electronic version only, may still constitute his Will if it can be shown by clear and convincing evidence he intended it to be his Will.

So, even if this is the law in this State, is it a good idea?  I would contend the answer is a resounding “no”.  First of all, the Michigan Supreme Court could overturn such decision.  Secondly, the proponent must prove such “document” to be the decedent’s Will by clear and convincing evidence.  This means going to Court and most likely having a trial on the issue, at great expense to all concerned. Finally, how do you know the decedent typed what appeared on his phone?  Quite frankly, you would be much better (and thousands of dollars ahead) if you simply meet with an attorney and have a Will or Trust Agreement drawn up that should be pretty much “bullet-proof” and reflects your last wishes.

You execute a Will and have it properly witnessed for a reason:  to make sure it will stand up to all challenges in Probate Court.  It is unknown whether some other document prepared on a cellphone, computer, or tablet will stand up to challenges by interested parties or be found by a Probate Court to be binding.  I do know, however, that our office has prepared literally hundreds (if not thousands) of Wills over the years and the number of them that may have been challenged can be counted on the fingers of one hand

For a relatively small amount of money, why take a chance on the interpretation to be made of your last desires, as expressed in your Will, especially as to the disposition to be made of your assets?   You have worked hard all of your life to accumulate the possessions you have. Isn’t it worth spending a little money up front to make sure they go where you want them to go and not have your heirs/beneficiaries fight over the remains or have some Court decide?  If you have an estate planning issue, need a Will, Trust, Durable Power of Attorney, or Patient Advocate Designation prepared, please contact the professionals at Damon, Ver Merris, Boyko & Witte, PLC, at (616) 975-9951 and set your mind at ease. We will “do it right” and have been doing so for decades. – Larry A. Ver Merris  /  August 6, 2018.

While this posting originates from a law office, none of the contents should, in any way, be considered legal advice. If you have not signed a retention letter describing the legal services to be provided and the amount to be paid for such services, you are not a client of this firm.

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