Monday, August 7, 2017
Nearly every jurisdiction in these United States has almost universally held, for a historically significant period of time, that an unsigned will is no good in probate. Whether the will is holographic or attested, the testator must, with some very stringent exceptions, place his John Hancock somewhere on the document. In a recent case out of Michigan, In re Estate of Attia, a Michigan appellate court overturned the probate court’s decision granting summary disposition regarding an unsigned will. The probate court dismissed an original petition holding that an unsigned will was not admissible into probate as a matter of law; so far, pretty unsurprising.
Where the appellate court diverges tangentially from the norm was its reasoning and statutory consideration that led it to hold that Michigan statute MCL 700.2503 worked as an exception to MCL 700.2502. MCL 700.2502 sets out the standard requirements for a will: it must be in writing, signed by the testator, and witnessed and signed by two other individuals.
The appellate court held that the language in MCL 700.2503 was intended by the legislature to be an exception to the general requirement that a will must be signed: “Accordingly, a will does not need to be signed in order to be admitted to probate under MCL 700.2503, as long as the proponent of the document in question establishes by clear and convincing evidence that the decedent intended the document to be a will. To hold otherwise would render MCL 700.2503 inapplicable to the testamentary formalities in MCL 700.2502, which is contrary to the plain language of the statute.”
Although the statutory language seems to allude only to “a document or writing added upon a document,” the court did see this as a barrier to their final holding. So, for now, a will without a signature can be introduced into probate in Michigan.
See Attia v. Hassan (In re Estate of Attia), 2016 Mich. App. LEXIS 2075 (Mich. Ct. App. Nov. 10, 2016).
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.