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
