What happens if you tell your attorney to update your will but you die before you can sign it? That issue was addressed in In re Attia, __ Mich App __; __NW2nd __; 2016 WL 6652492 (2016), an opinion recently published by the Michigan Court of Appeals.
In this case, a father of four executed a will and subsequent codicils that excluded any specific gift for one of his daughters, Mervat Hassan. According to the father, Mervat was “adequately provided for and [wa]s not in need.” Shortly before his death, however, the father met with his attorney and directed her to draft a new will (that was presumably more beneficial to Mervat). The father’s attorney drafted a new will but unfortunately, the father died on the day he was scheduled to sign the document.
After the father’s death, another daughter, Mayssa Attia, filed a petition to probate the executed will and codicils. Mervat then filed an objection and counter-petition asking that the unsigned, undated will be admitted to probate. Mervat argued that Michigan’s Estates and Protected Individuals Code, specifically MCL 700.2503, provides an exception to the will signing formalities found in MCL 700.2502. MCL 700.2503 allows a document or writing that does not meet the requirements of 700.2502 to still be treated as a validly executed will if the proponent can establish by clear and convincing evidence that the decedent intended the document to be his or her will.
The trial court ultimately sided with Mayssa, concluding that an unsigned will cannot be admitted to probate. The court found that the exception found in 2503 “relates to a document which is executed but is flawed in its execution.” However, on appeal, the Michigan Court of Appeals reversed the trial court’s ruling, finding that a will does not need a signature to be admitted into probate provided the proponent of the will establishes by clear and convincing evidence that the decedent intended the document to be a will. The court found that the plain language of 2503 permitted the probate of a will that did not meet the execution formalities -- specifically, the requirement that the document be signed by the testator -- found in 2502. The appellate court then sent the case back to the trial court for further proceedings.
So what are the lessons from this case? First, in cases where a document fails to comply with the formal requirements of a will found in MCL 700.2502, a document may still be treated as a valid will provided there is clear and convincing evidence that the decedent intended the document to be his or her will. Clear and convincing evidence is not an easy standard to meet and it may require years of litigation before the matter is fully resolved. Drafting attorneys should be advised to take careful and complete notes when meeting with clients, provide clients with prompt drafts of their estate planning documents, and develop a disciplined and precise signing process.
From a client’s perspective, the most important lesson is to not delay updating your estate planning documents. Make it a priority to schedule an appointment with your attorney so you can both start and complete the estate planning process. An experienced estate planning attorney can help you take steps to not only avoid potential litigation, but also avoid the probate process entirely through the use of a trust or other estate planning techniques.
The above is for informational purposes only and not intended to be a complete or exhaustive summary on Michigan’s Estates and Protected Individuals Code, MCL 700.1101 et seq. Moreover, the appropriate or best estate planning or litigation, if necessary, will depend on the facts of each case. Thus, readers should not act upon this information without seeking professional advice.