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By: Lisa Okasinski
Demorest Law Firm, PLLC
Royal Oak, Michigan

In a published opinion, the Michigan Court of Appeals held that a note created by a decedent on his phone is a valid will under Michigan law. Guardianship and Alternatives, Inc. v. Lanora Jones, Docket no. 339737 (July 2018).

In this case, the decedent wrote a note in his journal stating that his testamentary wishes could be found on his phone app. The trial court admitted the electronic expression as the decedent’s will under MCL 700.2503. The Court of Appeals affirmed.

The Court of Appeals concluded that the 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). However, the Court of Appeals held that the electronic note was enforceable as a will even though it did not meet the formal requirements of a will because there was clear and convincing evidence that the decedent intended for the electronic document in question to constitute his will. Where there is clear and convincing evidence of a decedent’s intent to create a will, MCL 700.2503 allows for the enforcement of a document that otherwise does not meet the formal requirements of a will. Ultimately, in deciding whether a person intends a document to constitute a “will,” the question is whether the person intended the document to govern the posthumous distribution of his or her property. See In re Fowle’s Estate, 292 Mich 500, 504; 290 NW 883 (1940).

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.” The Appeals Court agreed with the trial court’s conclusion that the document expressed decedent’s testamentary intent. On the face of the document, it is apparent that the document was written with decedent’s death in mind, as it was clearly intended to be read after decedent’s death. The Court of Appeals held that the trial court did not err by concluding that there was clear and convincing evidence that decedent intended the electronic note to constitute his will, and thus that the document constitutes a valid will under MCL 700.2503.