By: Jeffrey M. Bloom, Esq., Law Office of Jeffrey M. Bloom, PLC
What if you find something in writing that’s not a formal will or trust, but seems to state how your loved one wanted their estate handled? What if there are no witnesses, or it’s not notarized? Maybe a letter or handwritten note in a drawer? Perhaps an email?
In Michigan, in order to be a valid will, there must be (a) a writing signed by the testator (the person making the will) or in the testator’s name by an individual in the testator’s presence, and (b) signatures of two witnesses who witnessed the signing or the testator’s acknowledgment of the will. Contrary to popular belief, and while it is good practice to do so, the testator’s signature does not need to be notarized to be a valid will under Michigan law.
But what if you have a writing that does not comply with these requirements? Can it still be treated as a will?
There are two ways such a writing may nonetheless be admitted to probate and treated as a will. The first is known as a holographic will. Under Michigan’s Estate and Protected Individual Code (“EPIC”), even if the document does not have the signatures of two witnesses, a writing may nonetheless qualify as an admissible will if (a) it is dated, and (b) the testator’s signature and the document’s material portions are in the testator’s handwriting.
The second way for a “non will” to be admitted to probate is under a “catch all” provision of EPIC known as the dispensing power. This provision provides that a writing will be treated as a will if it can be shown by clear and convincing evidence that the decedent intended the document or writing to be the decedent’s will. This might be a typed letter, email, text, etc. So long as the high bar of clear and convincing evidence is met, the court may treat the writing as your loved one’s will.
In conclusion, where a writing doesn’t appear to meet the formal requirements of a will, it may nonetheless be admitted to probate and relied on to administer the estate if the above provisions are satisfied. To determine whether these provisions are satisfied, you should consider consulting legal counsel.
Jeffrey M. Bloom is the managing member of the Law Office of Jeffrey M. Bloom. His practice focuses on probate litigation, estate planning and administration, litigation, and elder law matters, along with a niche practice in liquor licensing. He also handles traditional business matters, including business formation, shareholder disputes, noncompete and trade secret matters, and breach of contract disputes.
He can be reached at jeff@jmbloomlaw.com or (313) 300-9983. To learn more about him and his practice, visit his website at www.jmbloomlaw.com
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