Do I Really Have to Sign My Will?

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, so as 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.

The above was the law of the State until a recent case of the Michigan Court of Appeals (In Re: Estate of Attia).  The Attia case dealt with admission to probate of an unsigned will, prepared by an attorney.  There the issue was whether a decedent must sign a Will in order for that Will to be admitted to probate and interpretation of the statutory provisions of EPIC (Section 2503) immediately following those provisions of section 2502, recited above.  Section 2503 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.  The local Probate Court refused to accept the unsigned will for probate but the Appellate Court remanded the matter back to the local Probate Court so that it could conduct an evidentiary hearing to ascertain if such “clear and convincing” evidence that the decedent intended the unsigned will to be his will could be established.

The Attia case has now opened up a Pandora’s Box of potential issues, but is the law of the State of Michigan until it is overturned by the Michigan Supreme Court or until the law is changed.  For example, what if an individual meets with an attorney, he drafts a Will and sends it to his client, the client approves it as written (or makes changes that are then incorporated into such document) and then makes arrangements to come into the lawyer’s office to properly sign it and have it executed by two witnesses in accordance with the statute, but then dies before this occurs?  Is that a valid Will?  What if the above occurs, but then the purported testator

says “I want to think about it a little bit more” before signing, and then never executes it before he dies a few weeks later?  Is that a valid Will or, because he stated he wanted to contemplate it a little longer before signing,

does that mean he must have changed his mind?  What about the witness requirement?  Is this still necessary?  Would only one witness do?  What about holographic Wills? Perhaps the material provisions can now be typed out instead of in your own handwriting?    Maybe now you don’t have to sign or date them!  It may even be possible that you could hold up a typed document in front of a witness(es), that is not signed or dated, and declare that document to be your will?!?   The possible scenarios go on and on.  However, it can certainly be argued that as long as one can prove by clear and convincing evidence that the decedent intended such document to be his will, none of the “requirements” of Section 2502 of EPIC have to be followed; thus all bets are off and nothing is really required under the statutes of the state of Michigan.

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 the purported “Will” in Attia will eventually be shown by “clear and convincing” evidence to evidence the decedent’s intent as to the disposition of his property; only time will tell (most likely after what will most be a long, contentious, and costly legal battle that may very well tear the family apart).

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 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, and set your mind at ease. We will “do it right” and have been doing so for decades.  – Larry A. Ver Merris

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.