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June 01, 2015

15 Years of MCL 700.2503 and "Writings Intended as Wills"


Introduction:
 
        Effective April 1, 2000, Michigan enacted MCL 700.2503 (entitled “Writings intended as wills, etc.”).  The statute provides as follows:
 
       Although a document or writing added upon a document was not executed in compliance with section 2502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute any of the following:
  (a)     The decedent's will.
  (b) A partial or complete revocation of the decedent's will.
  (c) An addition to or an alteration of the decedent's will.
  (d) A partial or complete revival of the decedent's formerly revoked will or of a formerly revoked portion of the decedent's will.

        According to the Reporter’s Comment, MCL 700.2503 “represents a liberalization of the rules governing the recognition of a document as a will or as a writing having testamentary effect.”1  The Michigan Court of Appeals has described the statutory purpose as follows: “[T]he purpose of the statute is to permit a probate court to overlook technical deficiencies in what clearly stands as a clear, accurate, written statement of the decedent’s testamentary intent.”2 The Michigan statute is based nearly verbatim on Section 2-503 of the Uniform Probate Code (entitled “Harmless error”).

        Over the past 15 years, the Michigan Court of Appeals has construed and applied MCL 700.2503 in eight decisions.  This case law has considered whether the statute’s clear and convincing evidence standard has been satisfied in particular cases, and what types of evidence may be offered by the proponent of a document under the statute.  The case law has considered whether documents reflected testamentary intentions, and whether such intentions were certain or final enough to be enforced.  The case law has considered whether non-will legal instruments (a trust amendment; a quitclaim deed) could qualify as a document intended as a will or will-related document under the statute.  And the case law has considered whether various types of defects in will formalities could be overlooked under the saving power of the statute.  This article will review Michigan case law construing and applying MCL 700.2503 since April 1, 2000.
 
In re Estate of Smith, 651 N.W.2d 153 (Mich. Ct. App. 2002):

        The Estate of Smith decision stands for the principle that the proponent of a defective instrument under MCL 700.2503 may offer extrinsic evidence of testamentary intent.
 
        On April 19, 1999, Kilyon Lee Smith executed her last will.  On April 20, 1999, Smith met with her church pastor and his wife.  At that meeting, Smith wrote a document in her own handwriting and in the Korean language.  The English translation of the handwritten document was: “I want to donate $150,000 to God in order to build a church.  1999/04/20 Lee, Kilyon (deacon).”3  The pastor and his wife apparently did not sign the document as witnesses.  On May 1, 1999, Smith died.
 
        Smith’s church (standing in for devisee God) petitioned to have the handwritten document admitted to probate as a holographic codicil to Smith’s last will.  The beneficiaries under Smith’s will opposed the petition, arguing that the document was not testamentary in nature because it “made no reference to death, a prior will, its effective date, or the intent of Smith that it become effective upon her death, nor was it physically attached to a will.”4  Instead, the beneficiaries argued that the document merely expressed a present intent to make a gift that Smith failed to complete during her lifetime.5 
 
        The beneficiaries moved for summary disposition on the ground that there was no genuine issue as to any material fact, because the handwritten document failed to express any testamentary intent.  The church acknowledged “that, on its face, the document at issue fail[ed] to reflect an intent on the part of Smith that the document constitute[d] a testamentary instrument[.]”  However, the church argued that the probate court should consider extrinsic evidence as to Smith’s testamentary intent, asserting “that such testamentary intent could be proved with regard to Smith’s creation of the document at issue, including information that Smith was well aware of her imminent death at the time that she created the document.”6 
 
        The probate court ruled that the handwritten document was not testamentary in nature, and that extrinsic evidence was not admissible to establish testamentary intent.  “The probate court concluded that, on its face, the document at issue was not a testamentary instrument;” that the document could not be admitted to probate; and “that extrinsic evidence [would be] relevant only if the document [were] admitted into probate.”7 
 
        The Michigan Court of Appeals reversed, holding that extrinsic evidence was admissible to establish testamentary intent under either MCL 700.2502 (based on UPC 2-502) or 700.2503 (based on UPC 2-503).  Under its holographic codicil theory, the church as proponent should have been allowed to offer extrinsic evidence of testamentary intent, based on the terms of MCL 700.2502(3): “Intent that a document constitutes a testator’s will can be established by extrinsic evidence, including, for a holographic will, portions of the document that are not in the testator’s handwriting.”  Alternately, the church as proponent should have been allowed to offer clear and convincing evidence, including extrinsic evidence, that the handwritten document was intended to constitute a codicil under MCL 700.2503.  “[B]y failing to allow for the admission of extrinsic evidence, the court deprived petitioner of the opportunity to make such a showing.”8 
 
In re Bruce D. Cameron Trust, No. 257306, 2005 WL 3190621 (Mich. Ct. App. Nov. 29, 2005):
 
        The Cameron Trust decision recognized that MCL 700.2503, by its terms, is limited to wills and will-related documents and does not extend to trusts.
 
        During his lifetime, Bruce D. Cameron created his revocable trust by executing his trust agreement.  Cameron subsequently executed his first amendment to the trust agreement.  He later made handwritten edits to the trust amendment, changing both the designated successor trustee and the distribution scheme for the named remainder beneficiaries.  The probate court enforced the handwritten edits to the trust amendment, and the adversely affected beneficiary appealed.
 
        The Michigan Court of Appeals rejected the appellant’s argument that the “clear and convincing evidence” standard of MCL 700.2503 applied to the handwritten edits to the trust amendment.  “That statute applies only to wills. ... Because the Cameron Trust is not a will, MCL 700.2503 does not apply.”9 
 
In re Estate of Berg, No. 268584, 2006 WL 2482895 (Mich. Ct. App. Aug. 29, 2006):
 
        In Estate of Berg, MCL 700.2503 preserved a will that failed to comply with the attestation requirements of MCL 700.2502(1).  This decision also reflected the use of extrinsic evidence by the document proponent to satisfy the “clear and convincing evidence” standard of MCL 700.2503.
 
        At her death, Shirley Berg left a will dated June 13, 2003.  Marilyn Silverstein, the beneficiary under Berg’s prior will but not under the 2003 will, objected to the admission of the 2003 will to probate on various grounds.  The probate court granted summary disposition to the proponent of the 2003 will, dismissing Silverstein’s objections.
 
        On appeal, Silverstein argued in part that the probate court had erred by admitting the 2003 will to probate, because the instrument had not been properly witnessed.  The Michigan Court of Appeals agreed that one witness’s signature on the 2003 will was defective.  “[Witness] Mr. Schulte testified that he signed the will at a separate location [than Ms. Berg’s execution] and that he never met or saw Ms. Berg.”10  However, the appellate court ruled that the 2003 will’s failure to comply with MCL 700.2502(1) was not fatal to the will’s admission to probate, because the instrument qualified as a document intended as a will under MCL 700.2503.
 
        The proponent’s evidence consisted entirely of extrinsic evidence – namely, the testimony of the scrivener of the 2003 will.  Notably, according to the opinion, the scrivener of the 2003 will – one “Mr. Gracely” - was a non-lawyer engaged in the unauthorized practice of law.  Mr. Gracely testified

that Ms. Berg called Mr. Gracely [the scrivener] in June 2003 and told him that she wanted to update her will or complete her estate planning documents.  Ms. Berg further explained to Mr. Gracely that she wanted Sue Thomas to be her personal representative and that she wanted to leave her 50 percent of her estate.  Ms. Berg also specified that she wanted to leave 50 percent of her estate to the same charities as provided in her previous will.  Ms. Berg specifically told Mr. Gracely that she did not want to execute a prior will that included Ms. Silverstein because she had not heard from Ms. Silverstein in two years.  Mr. Gracely made the requested changes, and Berg reviewed and approved them one or two days before she executed the will.11

 “Mr. Gracely’s testimony constitutes clear and convincing evidence that Ms. Berg intended for the June 13, 2003, will to be her last will and testament.”12 
 
In re Estate of Smoke, No. 273114, 2007 WL 4415499 (Mich. Ct. App. Dec. 18, 2007):
 
        The decision in Estate of Smoke reflected reluctance by the courts to deem a document lacking a signature to be the decedent’s will.
 
        Clark T. Smoke died on May 3, 2003, survived by his son Timothy, his brother Robert, and his sister Mary.  Smoke left a 1977 will that devised his estate (comprised primarily of real property) to his siblings, other than a $1,000 devise to son Timothy (who was a young child when the will was made).  Brother Robert submitted the 1977 will for probate.  Son Timothy objected to admission of the 1977 will to probate, on the grounds that Smoke sent letters to his siblings and (now adult) son shortly before his death, in which he expressed a testamentary plan contrary to that in the 1977 will.

        Timothy proffered two letters written by Smoke, both of which reflected a dispute between Smoke and his siblings over certain jointly owned real property.  The first letter was dated October 14, 2001 and addressed to Smoke’s siblings Robert and Mary.  In this letter, which was unsigned, Smoke stated: “I am getting older and I want to avoid any problems of being able to devise my share of the 152 acres to my son, Tim Smoke, if I should expire unexpectedly.”  The second letter was dated May 8, 2002 and addressed to Timothy.  In this letter, which was signed only “Dad,” Smoke stated, “So, if the land passes to you upon my death be smart, and don’t cave into pressure to unload the land for peanuts.”13 
 
        The probate court observed that the purpose of MCL 700.2503 “is to permit a probate court to overlook technical deficiencies in what clearly stands as a clear, accurate, written statement of the decedent’s testamentary intent.14  Applying this construction of the statute, the probate court found that the letters failed to constitute “a clear, accurate, written statement of the decedent’s testamentary intent.”  In particular, the probate court emphasized “the fact that the two letters with purported testamentary effect did not contain decedent’s signature, so it was highly unlikely that either of them were intended to carry out the decedent’s testamentary wishes.”15  The probate court “found that the lack of signature fatally undermined respondent’s reliance on them as testamentary instruments, because MCL 700.2503 was not intended to remedy such a glaring void in a will’s formation.”16 
 
        The Michigan Court of Appeals ruled that that probate court had not erred by declining to admit the letters to probate under MCL 700.2503, although it declined to rule that the statute could never save a will that lacked a signature.  “Although we are not in a position to speculate that every document must always bear a signature to be acceptable as a will, the probate court’s analysis and ultimate conclusion was amply supported by an examination of the letters presented in this case.”17 
 
        The appellate court simply found that the letters did not reflect certainty as to Smoke’s testamentary intentions.  “Both letters speak of the demise of the property to respondent from a future, sometimes conditional, perspective.”18  The appellate court agreed that the letters seemed to reflect that Smoke was reconsidering the testamentary scheme set forth in his 1977 will, but such vague reconsideration was insufficient for the letters to constitute a will, without any certainty regarding Smoke’s new testamentary plan.  “[T]he proponent of the document must demonstrate that the document itself represents a valid and more recent testamentary instrument. ... In other words, it is not enough that a document reflects the decedent’s intent to someday make changes to his will, or that it hints that the decedent has long abandoned the intent embodied and formalized in the will, or even that it expresses the decedent’s regret about ever making the will in the first place.”19 
 
In re Estate of Windham, No. 287937, 2010 WL 293064 (Mich. Ct. App. Jan. 26, 2010):
 
        The decision in Estate of Windham rested on the key distinction between an intention to make a will (enforceable under MCL 700.2503) and an intention to make a draft of a will (not enforceable under MCL 700.2503).

        Esther Vera Windham executed her last will on January 17, 2003, under which she devised her estate to her son, Edward Floyd.  She left the original of the will with her attorney and received a copy of the will.  Subsequently, Windham made handwritten changes on her copy of the will, by which she crossed out Edward Floyd as sole devisee and wrote in her daughter, Teresa Carr, as sole devisee.  Windham died on January 18, 2006.
 
        Daughter Teresa offered the marked-up copy of the will as a purported revocation of the will.  The probate court declined to give testamentary effect to the handwritten changes to the will copy, and Teresa appealed.  Based on the record, the Michigan Court of Appeals found that the evidence was insufficient to clearly and convincingly show that Windham intended the handwritten changes to be a revocation of the will.
 
        The handwritten changes included comments apparently directed to the attorney-scrivener who Windham expected to implement the changes.  “These comments appear to relate to Windham trying to organize her thoughts regarding how she wanted the will to read and how she was going to explain the family dynamic and her reasoning for her devise to the person who was going to revise her will.  Hence, these comments suggest that she lacked testamentary intent when she marked up her copy of the original January 17, 2003, will and was thinking of this marked-up copy as a draft.  Mere drafts of wills are inadmissible to probate.”20 
 
        In fact, Windham had historically revised her estate planning documents in just this way – by making notes on her copies, then giving the notes to her attorney.  Therefore, “the trial court did not clearly err by finding that there was not clear and convincing evidence that the marked-up copy of the January 17, 2003, will was a testamentary document resulting in a revocation.”21 
 
In re Samuel Gentile Trust, No. 289809, 2010 WL 4137450 (Mich. Ct. App. Oct. 21, 2010):
 
        The Michigan Court of Appeals ruled in In re Bruce D. Cameron Trust, supra, that MCL 700.2503 only applied to wills or will-related documents, not trusts.  In the Gentile Trust decision, the Court of Appeals ruled that a trust amendment could be given effect as a will revocation under MCL 700.2503.
 
        During his lifetime, Samuel Gentile created a revocable trust.  Under his first trust amendment dated January 2007, Gentile named John Carlesimo as the sole trust beneficiary.  Gentile also had a will that named Carlesimo as the beneficiary of his estate.  Under his second trust amendment dated January 1, 2008, Gentile named John Graybill as the sole trust beneficiary, revoking Carlesimo’s beneficial interest in the trust.  However, Gentile took no separate action to revoke his devise to Carlesimo under his will.  Gentile died on January 4, 2008.
 
        The validity of the second trust amendment was litigated by Carlesimo and Graybill.  Following trial, the jury determined that the second amendment was valid, and the probate court entered judgment giving effect to the jury’s verdict.
 
        Subsequently, Grabill petitioned the probate court for a determination that the second trust amendment operated to revoke Gentile’s will to the extent it named Carlesimo as the beneficiary of Gentile’s probate estate.  The second trust amendment provided that, upon Gentile’s death,

all the rest residue and remainder of Trust property and estate, including any accumulations and any estate outright of Grantor Samuel Gentile, shall be awarded to John Graybel [sic] of Alaska, and any right, claim or interest that John Carlesimo may have to any of the assets, estate, residue, Trust or accumulations of any kind attributable to Samuel Gentile, shall be terminated and held for naught, and all of said property right, title and interest shall be distributed to John Graybel [sic] of Alaska.22

        Following an evidentiary hearing, the probate court determined that there was clear and convincing evidence that Gentile intended to leave all of his property (both trust and non-trust assets) to Graybill, and that the second amendment “was intended to effectuate that intent and to revoke any bequests, gifts and appointments in favor of John Carlesimo.” 23 Carlesimo appealed.
 
        The Michigan Court of Appeals held that the probate court did not err in finding that Gentile intended to leave all of his property (trust and non-trust) to Graybill.  “[T]he evidence clearly showed that it was the decedent’s understanding and intent that when he died, all of his property was to go to Graybill, whether held in trust or not, and that Carlesimo was not to receive anything.”24  The appellate court implicitly concluded that Gentile’s intention to leave all of his property to Graybill was automatically tantamount to Gentile’s intention to revoke gifts to Carlesimo under his will.  That conclusion seems problematic.
 
        First, the record reflected that Gentile may not have even known that Carlesimo was named as the beneficiary under his will.  “[I]t appears that the decedent was unaware that Carlesimo was also the named beneficiary in his will, or did not understand the difference between his trust and his will.”25  If Gentile, when he signed the second amendment, did not know that Carlesimo was named as beneficiary under his will, then it is difficult to imagine how Gentile could have specifically intended that the second amendment should revoke the gift to Carlesimo under his will.
 
        Moreover, the record reflected that Gentile’s attorney, who drafted the second amendment, did not intend for the second amendment to have any effect on Gentile’s will.  The appellate court dismissed that fact by stating that only Gentile’s intention mattered.  “Carlesimo relies on testimony by Nielson [attorney-scrivener] that the second amendment to the trust was not intended to amend or change the decedent’s will.  However, Nielsen was referring to his own understanding of the purpose of the trust amendment, not the decedent’s intent or understanding of the document.”26 
 
        The difficult aspect about the Gentile Trust decision is that it seems to dispense with the express statutory requirement that the decedent specifically intended the document to constitute a will revocation, in favor of a general intention that a specific person not receive any gift upon death through any conceivable means.
 
In re Estate of Southworth, No. 297460, 2011 WL 2623381 (Mich. Ct. App. July 5, 2011):

        In Estate of Southworth, the Michigan Court of Appeals ruled that a deed could be given effect as a will alteration under MCL 700.2503.
 
        Prior to 2005, Helen Kahle Southworth made her last will, designating Adrian College as the primary beneficiary.  In February 2005, Southworth consulted an attorney for estate planning assistance.  “The decedent advised that she had a will drafted, but wanted to make one change regarding the disposition of her property.  Specifically, the decedent wanted [Charles] Russell to receive her home and the accompanying 160 acres, but retain a life estate for herself.”27  Russell was Southworth’s longtime friend and neighbor.
 
        Accordingly, the attorney prepared a quitclaim deed “as requested by the decedent.”28  On February 15, 2005, Southworth executed the deed at her attorney’s office, in the presence of the attorney.  Southworth took the original deed with her.  She did not deliver the deed to Russell or tell him about the deed.  Instead, she put it in her safe at her home, together with her will.  The deed was not recorded during her lifetime.  It was found in the safe after Southworth died on March 1, 2009.
 
        After Southworth’s death, Russell and Adrian College litigated who owned the residence and 160 acres.  “The probate court granted [Russell]’s motion for summary disposition, holding that [Russell] presented clear and convincing evidence that the decedent intended the undelivered deed to be an addition to or alteration of her will in accordance with MCL 700.2503.”29  The college appealed.
 
        The Michigan Court of Appeals affirmed the probate court’s judgment, based primarily on the affidavit of Southworth’s attorney.  “[The attorney] was advised by the decedent that she had a will, but wished to make one change to the disposition of her property.  Specifically, she wanted to convey the residence and acreage to [Russell].  In accordance with that wish, a quitclaim deed was prepared conveying the subject property to [Russell], and the deed at issue was stored with the decedent’s will.”30 
 
        By way of commentary, Southworth Estate seems to have been wrongly decided by both the probate and appellate courts.  Southworth told her attorney that she wanted to make a lifetime conveyance of real property to Russell, reserving only a life estate in herself.  Accordingly, the attorney drafted a deed making a lifetime conveyance of real property to Russell and reserving a life estate.  An inter vivos conveyance by deed (effective during lifetime) is fundamentally different than a testamentary conveyance (effective upon death).
 
        Based on the decision, there was little evidence in the record that Southworth wanted to make a testamentary gift to Russell.  While Southworth did say she wanted to make one change to her will, that statement coming from a layperson likely meant, “I want to make a lifetime conveyance of certain real property to Russell, which will change how much Adrian College receives under my will.”  The decision is problematic.
 
In re Leach, No. 304688, 2012 WL 4900516 (Mich. Ct. App. Oct. 16, 2012):
 
        The Leach decision stands for the principle that the probate court should hold an evidentiary hearing when there are contested issues of material fact, as well as the interplay between testamentary capacity and testamentary intent.
 
        Marian T. Leach executed two documents on her death bed, which purported to gift certain real property to Keith M. Storm, effective upon Leach’s death.  After Marian died, Keith petitioned to admit the documents to probate under MCL 700.2503.  Jeremy Storm and Derek Storm opposed Keith’s petition.
 
        The parties filed competing summary disposition motions.  The probate court granted Keith’s motion (finding that the documents had “testamentary intent”) and denied Jeremy and Derek’s motion (finding that the existence of factual questions regarding their objection to Keith’s petition precluded summary disposition).  Jeremy and Derek appealed.
 
        The Michigan Court of Appeals held that the probate court erred by granting Keith’s summary disposition motion.  First, the probate court had failed to apply MCL 700.2503’s “clear and convincing evidence” standard to Keith’s petition.  Second, the fact questions that the probate court identified with regard to Jeremy and Derek’s objection were equally germane to Keith’s petition.  “[T]here were no witnesses, decedent was suffering from chronic congestive heart failure and mitral valve disease; the documents were executed on the eve of decedent’s death while she was in hospice care and they were drafted by [Keith], by beneficiary.”31 
 
        Alluding to the probate court’s distinction between testamentary capacity and testamentary intention, the Court of Appeals noted that the decedent’s possession of capacity was relevant to the decedent’s possession of intention.  “[R]egardless of whether a finding as to capacity is distinct from a finding of intent, the questions raised by the probate court concerning decedent’s capacity were similarly relevant to whether decedent had testamentary intent.”32 
 
        The appellate court remanded the case for an evidentiary hearing.  “[T]he probate court should have held an evidentiary hearing to address the unresolved questions of fact surrounding the execution of the documents, which in turn would have allowed the court to determine whether there was clear and convincing evidence that Leach intended the documents to be her will.”33 
 
Conclusion:
 
        The fundamental requirement for application of MCL 700.2503 is that the proponent put forth “a document or writing added upon a document.”  As noted by the Reporter’s Comment, the statute “does not apply to testamentary instructions in or on other media, such as an audiotape or videocassette.”34 As the legal profession and society generally transition from paper-based to electronic and digital-based documents, it seems all but certain that future Michigan case law applying MCL 700.2503 will confront the meaning and boundaries of what constitutes a “document” for purposes of the statute.

Endnotes:

1 J. Martin and M. Harder, Estates and Protected Individuals Code with Reporters’ Commentary Section 700.2503, Reporter’s Comment (ICLE 2014). 
2 In re Estate of Smoke, No. 273114, 2007 WL 4415499 (Mich. Ct. App. Dec. 18, 2007). 
3 Id. at 154. 
4 Id. at 155. 
5 Id. at 154.
6 Id. at 155.
7 Id.
8 Id. at 156 (reversed and remanded).
9 Id. at *1 (affirming judgment of probate court).
10 Id. at *1. 
11 Id. at *2. 
12 Id. (affirming judgment of probate court).
13 Id. at *1.
14 Id. at *2. 
15 Id. at *3. 
16 Id.
17 Id. at *3.
18 Id
19 Id. at *2 (affirming judgment of probate court).
20 Id. at *1.
21 Id. at *2 (affirming judgment of probate court).
22 Id. at *7.
23 Id. at *1 (internal quotation omitted). 
24 Id. at *7. 
25 Id. at *7.   
26 Id. at *7.
27 Id. at *1. 
28 Id
29 Id
30 Id. at *3.
31 Id. at *1.
32 Id. at *2.
33 Id. (reversed and remanded).
34 J. Martin and M. Harder, Estates and Protected Individuals Code with Reporters’ Commentary Section 700.2503, Reporter’s Comment (ICLE 2014). 
 
Michigan Probate & Estate Planning Journal (Vol. 34, No. 3)

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