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WILLS/TRUSTS 5: Probate court concluded that decedent’s electronic note was his will.

The decedent committed suicide in December 2015, at the age of 21. Before he committed suicide, decedent left an undated, handwritten, journal entry. There is no dispute that the journal entry was in decedent’s handwriting. The journal entry stated: I am truly sorry about this . . . My final note, my farewell is on my phone. The app should be open.

The “farewell” or “last note” referred to in decedent’s journal entry was a typed document that existed only in electronic form. Decedent’s full name was typed at the end of the document. No portion of the document was in decedent’s handwriting. The document contained apologies and personal sentiments directed to specific individuals, religious comments, requests relating to his funeral arrangements, and many self-deprecating comments. The document also contained one full paragraph regarding the distribution of decedent’s property after his death.

After an evidentiary hearing involving testimony from several witnesses, the probate court concluded that decedent’s electronic note was intended by decedent to constitute his will. Therefore, the probate court recognized the document as a valid will under MCL 700.2503.

On appeal, Appellant argues that the trial court erred by recognizing decedent’s electronic note as a will under MCL 700.2503.

As set forth in MCL 700.2502(1), there are specific formalities that are generally required to execute a valid will.  However, as expressly stated in MCL 700.2502(1), there are several exceptions to these formalities.

Although a document or writing added upon a document was not executed in compliance with section 2502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute any of the following: (a) The decedent’s will. (b) A partial or complete revocation of the decedent’s will. (c) An addition to or an alteration of the decedent’s will. (d) A partial or complete revival of the decedent’s formerly revoked will or of a formerly revoked portion of the decedent’s will.

In this case, it is undisputed that decedent’s typed, electronic note, which was unwitnessed and undated, does not meet either the formal requirements for a will under MCL 700.2502(1) or the requirements of a holographic will under MCL 700.2502(2). Instead, the validity of the will in this case turns on the applicability of MCL 700.2503 and whether the trial court erred by concluding that decedent intended the electronic document to constitute his will.

In this case, to determine whether decedent intended his farewell note to constitute a will, the trial court considered the contents of the electronic document as well as extrinsic evidence relating to the circumstances surrounding decedent’s death. After detailing the evidence presented and assessing witness credibility, the trial court concluded that the evidence was unrebutted that the deceased hand wrote a note directing the reader to his cell phone with specific instructions as to how to access a document he had written electronically in anticipation of his imminent death by his own hands.

On the face of the document, it is apparent that the document was written with decedent’s death in mind; indeed, the document is clearly intended to be read after decedent’s death. The note contains apologies and explanations for his suicide, comments relating to decedent’s views on God and the afterlife, final farewells and advice to loved ones and friends, and it contains requests regarding his funeral. In what is clearly a final note to be read upon decedent’s death, the document then clearly dictates the distribution of his property after his death.

A will can help ensure that your family members understand your wishes, thus minimizing the risk of disputes and litigation. Without a validly executed will, your estate will pass by the rules of intestate succession at the time of your passing, which may or may not achieve your goals.  Aldrich Legal Services drafts and reviews wills, trusts and other estate planning documents to ensure validly.

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