The Court of Appeals of Michigan was recently called upon to decide that very question. In a published opinion, the Court of Appeals determined that Michigan law allows a probate court to admit a will without a signature to probate, if the proponent of the will establishes, by clear and convincing evidence, that the decedent intended the document to constitute his or her will.
In re Attia Estate involved a decedent who died in 2014. The decedent had four children, and originally signed a will in 1986. The decedent then amended that will twice, once in 2009 and once in 2013. In 2014, the decedent met with his attorney and asked her to prepare a new will. Apparently, other people were present when the decedent instructed his attorney to prepare a new will, at which point his attorney and the others present also heard the new terms the decedent wanted in this new will. The attorney prepared the new will and scheduled to meet with the decedent to sign it. Unfortunately, that meeting was scheduled for the day the decedent died.
A battle between the decedent’s children ensued in the Wayne County Probate Court. The proponent of the unsigned will argued that Michigan law had a statute on point which allowed an unsigned will to be admitted to probate. The Probate Court Judge dismissed this argument on summary disposition, interpreting the statute to provide that documents which were signed, but not signed with all of the necessary formalities could be admitted to probate.
On appeal, the Court of Appeals reversed the Wayne County Probate Court. The Court of Appeals reviewed both the statute which sets forth the requirements for how wills are to be signed in Michigan (MCL 700.2502). The Court of Appeals also noted that there is a Michigan statute which allows a will to be admitted to probate if the will does not meet the requirements of MCL 700.2502 (MCL 700.2503). One of those requirements is that, in order to be admitted, a will must be “signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.” The Court of Appeals determined that prohibiting unsigned wills from being admitted to probate would undermine the language of MCL 700.2503.
What does all of this mean? If a person prepares a will but fails to sign it prior to death, that will can still be admitted to probate so long as there is clear and convincing evidence to show that the unsigned document was intended to be the person’s Will. However, because clear and convincing evidence is required, and is generally a difficult burden to overcome, unsigned wills being admitted to probate should still be quite rare. This decision does provide somewhat of a safety net, however, for circumstances in which wills are prepared, meetings are scheduled to sign those wills, but unfortunately the individual dies before signing the will.
If you have questions or concerns about estate planning, contact the attorneys of Andrews Scheuerle + Huss, PLLC today to learn more.