The Always Interesting Holographic Wil

By Doug Chalgian on March 31, 2014

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A holographic will is a will that a person writes out in their own hand – and signs and dates.  If this is done, the usual requirements that the will be witnessed do not apply.    People like to talk about these cases because they tend to come up in unusual matters.  In reality they are seldom seen.

In any event, the Michigan Court of Appeals recently issued an opinion in a holographic will case.  In this case a woman wrote out what appears to be just such a document, but the trial court said the document was not her will because evidence suggested it was not her intent for this to be a will – but rather only notes about what she might put in her will.  To read the case click here.

I have a problem with this result.  The document at issue starts with the following: “Last Will and Testament.  Being of Sound Mind” At this bottom of the page is the testator’s signature and date.  It is all written in her handwriting. To see the document, click here.

Notwithstanding, the trial court determined that this was not a valid holographic will.  The Court or Appeals upheld this result.  The case is not reported, meaning it has no precedential value.  Nonetheless, in my opinion, the reasoning undermines the statutory basis of holographic wills and creates problems for people seeking to uphold these documents in the future.

Legal Issues:  Michigan law recognizes two types of documents that can be admitted to probate: wills and documents intended to be wills.  Essentially the law says that if a document is a will, it will be admitted.  This can be accomplished in one of two ways: by having the document witnessed in accordance with the law (typically what is done when someone works with a lawyer to prepare their will) or if it meets the requirements of being a holographic will (being written in the testator’s own hand, signed and dated).  If these requirements are not met, the document can still be admitted to probate if it is shown that the person who prepared it intended it to be their will even though the document fails to meet the requirements of either a lawyer-prepared will or holographic will.  This case seems to blur the line between a valid holographic will and a document intended to be a will.  It seems to place the higher standard of proof on a document which, on its face, meets the statutory requirements to be admitted as a will.  To get there the Court looked at “intent.”  The Court determined that for any document to be admitted it must be shown that the testator intended it to be a will.  This intent requirement would presumably be met in almost any case in which the person went to a lawyer to have their will prepared and witnessed.  My concern with this case is twofold:  First, if you have to prove “intent” to admit a holographic will you have essentially demoted every holographic will to the same standard as a document intended to be a will but not meeting the statutory requirements.  This, in my estimation, changes the law as it is written and as it has been interpreted historically.  Second, in this case in particular, where the document states at the outset “Last Will and Testament” and “Being of Sound Mind” – how on earth can the Court conclude that this document was not intended to be a will?  Why would anyone put that on the top of the page if they were not intending to create a will?

In the end, it is only an unreported opinion from the Court of Appeals.  However, the reasoning opens the door to more litigation in cases involving holographic wills.

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mm By: Doug Chalgian
Doug Chalgian

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