“Duane Horton tragically took his own life in December, 2015. As his last entry in a journal, he left an undated handwritten note that stated: ‘I am truly sorry about this … My final note, my farewell is on my phone. The app should be open.  If not look in evernote, ‘Last Note’[.]’ The journal entry also provided the email address and password for ‘evernote.’

It was uncontested that the undated unsigned journal entry was in Duane’s own handwriting.  The ‘evernote’ (the ‘Note’), however, was a typed document that only appeared in electronic format.  It did not contain an electronic signature other than Duane typed his full legal name at the conclusion of the Note.  The Note included apologies, religious and self-deprecating comments, funeral instructions and directions as to the disposition of his possessions.  It also indicated that his relationship with his mother was estranged and he did not wish her to receive any of his assets. 

In this instance, because the journal entry was not dated and signed it did not constitute a holographic Will. The Note also did not constitute a holographic will or otherwise meet the formalities required under EPIC for a duly executed Will.  But the Court held that the Note could be admitted as a Will under MCL 700.2503, which permits admission of writings intended as Wills, if the proponent can establish by clear and convincing evidence that the decedent intended the instrument to constitute (revoke, amend or revive) a Will.

By this opinion, a wide door has been opened to the admission of documents which historically would have been overlooked by family, heirs and fiduciaries.  Does In Re Estate of Horton enlarge a personal representative’s obligation in searching for a Will (and even if a Will is found) to see if a notation on a cell phone, computer, tablet, the cloud, another electronic record, slip of paper/material and any other form of documentation indicates a (contrary) expression of the decedent’s dispositive intent?  Admission of such instruments, which lack the formalities of a duly executed Will, may actually have an adverse effect on implementation of a decedent’s intent if such documentation is the result of undue influence, fraud, or an insane delusion.

Sandra Glazier provides members with fascinating commentary on the recent case of In re Estate of Duane Frances Horton.

Sandra D. Glazier is an equity shareholder at Lipson Neilson, P.C., in its Bloomfield Hills, MI office. She concentrates her practice in the areas of family law; probate litigation; estate planning; and probate and trust administration. She has served as a mediator, arbitrator and guardian ad litem in family court and probate cases. With over 35 years of experience, she has handled a multitude of complex cases. In the probate litigation arena, Glazier has represented parties in some of the largest estates subjected to litigation in Michigan. Her experience includes, but is not limited to, complex litigation relating to claims of breach of fiduciary duty, will and trust contests, and claims of undue influence or lack of capacity. She has been an active member of the Oakland County Bar Association (OCBA) since 1987, where she has served on the Family Law Court, Probate and Legislative committees. She recently served as chair of the OCBA Probate-Committee during 2015-2016, with that committee earning the OCBA’s 2016 “Committee of the Year” under her leadership. In addition, she has served as vice chair of the Probate Committee, vice chair and chairperson of the OCBA’s Family Court Committee, subcommittee chair and representative for the Family Court Division for a number of bench/bar retreats, liaison to the Legislative Committee, and as a member of the OCBA’s nominating committee and its Public Advisory Committee on Judicial Candidates. She is also a member of the ABA’s RPTE CLE committee.

Here is her commentary:

COMMENT:

Duane Horton tragically took his own life in December, 2015.  As his last entry in a journal, he left an undated handwritten note that stated:  “I am truly sorry about this … My final note, my farewell is on my phone.  The app should be open.  If not look in evernote, ‘Last Note’[.]” The journal entry also provided the email address and password for “evernote.” 

It was uncontested that the undated unsigned journal entry was in Duane’s own handwriting.  The “evernote” (the “Note”), however, was a typed document that only appeared in electronic format.  It did not contain an electronic signature other than Duane typed his full legal name at the conclusion of the Note.  The Note included apologies, religious and self-deprecating comments, funeral instructions and directions as to the disposition of his possessions. It also indicated that his relationship with his mother was estranged and he did not wish her to receive any of his assets. 

His mother would have been his sole heir if he were determined to have died intestate.  Prior to his death, Guardianship and Alternatives, Inc. (GAI), had been his duly appointed conservator. Following his death, GAI sought to have the Note admitted as Duane’s Will and be appointed his personal representative.  Duane’s mother opposed admission of the Note as a Will.

In this published Michigan Court of Appeals decision[1] it is obvious that the Court wanted to give effect to Duane’s clearly stated dispositive intentions.

Michigan is essentially a Uniform Probate Code state[2].  In a Will contest, the proponent of a Will bears the burden of establishing that a purported Will was duly executed.[3]  The Note clearly did not meet the requirements of MCL 700.2502, which requires in pertinent part that the Will be signed by the testator (or in the testator’s name) and witnessed by at least two individuals who either actually witnessed the execution by the testator or signed within a reasonable time of the testator acknowledging his signature on the Will.

Michigan does recognize holographic Wills.[4]  Therefore, a document which is dated and signed by the testator containing material portions in the testator’s handwriting can be admitted as a Will.[5]  As to those portions of a document (which are not dated, signed and in the testator’s own handwriting) incorporated (actually or by reference) into a holographic (or duly executed) Will , can nonetheless also constitute part of the Will, if extrinsic evidence demonstrates that the document was intended to constitute part of the testator’s Will.[6]

In this instance, because the journal entry was not dated and signed it did not constitute a holographic Will.  The Note also did not constitute a holographic will or otherwise meet the formalities required under EPIC for a duly executed Will.  But the Court held that the Note could be admitted as a Will under MCL 700.2503, which permits admission of writings intended as Wills, if the proponent can establish by clear and convincing evidence that the decedent intended the instrument to constitute (revoke, amend or revive) a Will.[7]

By this opinion, a wide door has been opened to the admission of documents which historically would have been overlooked by family, heirs and fiduciaries.  Does In Re Estate of Horton enlarge a personal representative’s obligation in searching for a Will (and even if a Will is found) to see if a notation on a cell phone, computer, tablet, the cloud, another electronic record, slip of paper/material and any other form of documentation indicates a (contrary) expression of the decedent’s dispositive intent?  Admission of such instruments, which lack the formalities of a duly executed Will, may actually have an adverse effect on implementation of a decedent’s intent if such documentation is the result of undue influence, fraud, or an insane delusion.

The comments to UPC §2-503, upon which MCL 700.2503 was based, indicate that the purpose behind liberalization of rules recognizing certain documents as a Will was to “excuse harmless error in complying with the formal requirements for executing or revoking a will”.  A further review of the comments reflects that the types of “harmless error” that this exception was intended to address related to such things as (i) when the Testator, through a misunderstanding of the rules, fails to obtain the signature of one or more witnesses, or (ii) when an alternation occurs on a previously executed Will.[8]  The comments also indicate, in pertinent part:

While, in appropriate case, §2503 relaxes the requirements of MCL 700.2502, to preserve and give effect to the testator’s intent, §2503 applies only to a document or writing on a document.  It does not apply to testamentary instructions in or on other media, such as an audiotape or videocassette.[9]

While effectuating a testator’s intent is a lynchpin concept in the administration of Wills and trusts,[10] opening the door to the admission of electronic instruments (slips of paper and other documents which so significantly fall outside the gambit of an enabling statute), will likely increase the responsibilities and costs of administration as well as the potential for litigation.

Here, there was clear evidence that decedent wrote the Note in close proximity to taking his own life and that Duane’s handwritten note essentially intended to incorporate the electronic record by reference.  One might query whether the result would have been the same in the absence of the handwritten journal entry, written in close proximity to his suicide which referenced a record containing clear indications of intent as to the disposition of his property, inclusive of requests relative to the disposition of his remains.

 

HOPE THIS HELPS YOU HELP OTHERS MAKE A POSITIVE DIFFERENCE!

 

Sandra Glazier

 

CITE AS: 

 

LISI Estate Planning Newsletter #2657 (August 6, 2018) at http://www.leimbergservices.com  Copyright 2018 Leimberg Information Services, Inc. (LISI). Reproduction in Any Form or Forwarding to Any Person Prohibited – Without Express Permission. 

 

CITATIONS:

 

[1] In re Estate of Duane Francis Horton, II, ______ Mich. App. ______ (2018), _____ N.W. 2d _____, 2018 WL 3443383.

[2] But it is noteworthy that numerous provisions of Michigan’s Estate and Protected Individuals Code (“EPIC” deviate in some respects from the Uniform Probate Code (“UPC”)).

[3] MCL 700.3407(1)(b).

[4] MCL 700.2502(2).

[5] Id.

[6] MCL 700.2502(3).

[7] MCL 700.2503.

[8] See Reporter’s Comment to MCL 700.2503.

[9] Id.

[10]See Shriners Hospitals for Children v. First Northern Bank of Wyoming, 373 P.3d 392, 2016 WY 51 (Wyo. 2016). See also the Comment to UTC §1006 which reiterates the concept that trusts should be administered in accordance with the settlor’s intent.