Old Estate Planning Ideas Give Way to New Technology

As Duane Horton contemplated his death, he decided to use an app on his smartphone to write a message that explained how he wanted his estate distributed when he was gone. Under Michigan law, that “document” was his will. So says the Michigan Court of Appeals in the recent case of In Re Estate of Duane Francis Horton, II.

The case highlights what is happening throughout the country with respect to the way people now use technology to express their testamentary desire and how the law is struggling to keep up. In fact, many states have adopted or are considering laws that allow people to create wills online; so-called “digital wills.” Michigan’s approach is markedly different and in the end may prove to be the better way to deal with the challenges presented by the digital age.

Douglas G. Chalgian

About the Author:Attorney Douglas G. Chalgian is both certified in elder law by the National Elder Law Foundation and a Fellow with the American College of Trust and Estate Counsel. He is also the only attorney in Michigan who has served as Chair of both the Probate and Estate Planning and Elder Law and Disability Rights Sections of the State Bar. Mr. Chalgian was appointed by the Governor to the Commission on Services to the Aging. He was one of about a dozen attorneys on the Michigan Trust Code Drafting Committee, and has been selected five times as one of the top 100 lawyers in Michigan by Super Lawyers Magazine. Mr. Chalgian writes and speaks regularly on the topics of estate planning, elder law, and probate court litigation.

Learn more about Douglas G. Chalgian


1. What is a will?

As most people understand, traditionally, a valid will has been defined by formalities associated with the circumstances surrounding its creation. Formalities of execution, particularly, the requirement of witnesses, have been threshold requirements to a valid will. These formalities have been considered necessities because they provide an assurance both that (1) the document is not a fraud, and (2) that the document was intended to be a final expression, rather than a passing thought.

Most or all jurisdictions also recognize “holographic wills.” These are wills that do not have witnesses, but are recognized as valid testamentary expressions because the substantive portions of the document are in the handwriting of the testator. The fact that the document is written in the hand of the deceased testator has been recognized as an adequate substitute of reliability to the need for witnesses. There are times, it has been assumed, where someone needs to make a will and there simply are not suitable witnesses available.

attorney at desk

2. Beyond harmless error

Michigan law now recognizes a third method of establishing the validity of a will, and it arose unexpectedly and from a place that surprised most estate planning attorneys. In 2000, Michigan adopted a modified version of the Uniform Probate Code, one of the few states to utilize this section of the Uniform Code labeled as the “harmless error” provision.

That provision stated that courts could recognize a document as a valid will if it could be shown that the document was intended to be the testator’s will, regardless of whether the formalities of execution were met. In order to admit such a document, the intent of the testator had to be established by “clear and convincing evidence,” which is the highest standard of proof in the law.

Most states that adopted the Uniform Probate Code passed on the harmless error provision out of concern that this rule could be construed more broadly and could allow documents that varied dramatically from traditional wills to be offered
for admission. That is, they were concerned that this would be the exception that consumes the rule. Michigan took a gamble and adopted what is now MCL 700.2503.

…courts could recognize a document as a valid will if it could be shown that the document was intended to be the testator’s will, regardless of whether the formalities of execution were met.

As it turns out, the concerns of the skeptics were wellfounded. But it also turns out that this unanticipated use of Section 2503 may be just what was needed to keep up with the changing times.

The first hint of where this was leading came up in the 2016 case, In Re Estate of Attia. In Attia, the deceased testator went to a lawyer to have a new will prepared and scheduled a date to have it signed. But before the new will was signed, the testator died. The family members that benefited from the changes in the proposed will submitted the unsigned draft to the court as the final will. The trial court rejected the document and concluded that an unsigned draft was simply too flawed to be accepted, even under Section 2503. The parties advocating for the document appealed, and in a published opinion, the Michigan Court of Appeals reversed the decision and remanded the case to the trial court with instructions to have a trial on the question of intent. The Court of Appeals held that Section 2503 is a separate method of validating a will and the failure of the document to meet the formalities of execution is not grounds to dismiss the case without a hearing on the testator’s intent.

If the Attia case raised eyebrows in the estate planning community, the Horton case, which was published in 2018, took this debate to an entirely new level. The proposition that someone could simply write out their wishes on their phone, with no lawyer involved and no witnesses, and that such a document was not only possibly admissible as a will but that it was deemed a valid will, has sent shock waves through the estate planning community

3. Not applicable to trusts

It should be noted that these changes relate only to the use of wills. Because trusts are contractual documents, the validity of which are established during the life of the settlor, the ability to revoke or amend trusts will continue to be controlled by the terms of the trust itself and are not impacted by Section 2503, which relates solely to the admissibility of a will after the testator’s death.


The law is slow to change, but changes to the traditional concepts of estate planning are certainly needed. While many states are looking for other methods of approaching the need for change, Michigan’s approach offers what may be the best and most logical solution to the challenges of this digital age. Of course, as with any change, there are offsetting risks and benefits. The Michigan approach raises the importance of the testator’s intent, but does so at the expense of the protective features of the formalities of execution.

Whether this development is good or bad is a matter of debate. Some planners remain concerned that Section 2503 will create more litigation and greater potential for unintended documents or other expressions to be admissible as testamentary expressions. And to be sure, the future is uncertain. Notes of all sorts, emails, and even Facebook posts can now be offered to courts as valid wills or codicils. Time will tell.