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Where There’s a Will, There’s a Way to Write a Will: Examining the Challenges of Holographic and Electronic Wills

Posted by Kimberly Crank Browning | Jul 12, 2022 | 0 Comments

In 1948, the heirs of a Saskatchewan farmer walked into a courtroom with a tractor fender
in hand. The farmer,
George Cecil Harris, scratched the words “In case I die in this mess, I
leave all to the wife” on June 8 as he lay trapped under the tractor. Saskatchewan law at the time allowed handwritten wills as long as the heirs could prove the testator wrote and signed the document.

Although Harris' wife, Bessie May, eventually received his entire estate (worth more than
$13,000 at the time), it was not immediately given to her. The lawyer who represented the
estate had to prove that the will met the statutory requirements. Harris' banker testified
that the handwriting was, in fact, Harris', and a friend found inside Harris' clothing the
pocketknife he likely used to write his unconventional will.

Saskatchewan's most famous holographic will offers a somewhat entertaining look at the
history and use of holographic wills in settling estates. However, not every case involving a handwritten will is as neat and easy to resolve as Harris' situation. In fact, holographic and electronic wills create interesting challenges for probate courts and the people who stand to inheritor notthe person's estate.

Holographic Wills in Michigan

A holographic will is an unwitnessed will that the testator writes in their own handwriting.
Nearly half of the states in the U.S.including Michiganaccept holographic wills.

Under Michigan's Estates and Protected Individuals Code, the will must meet the following criteria:
Be in writing

Signed by the testator or by someone else under the direction of the testator

Signed by at least two witnesses

A will also qualifies as a holographic will if the testator wrote the will in their own
handwriting and signed and dated iteven if there are no witnesses. Beneficiaries can use
other documents to support the will and prove the testator's intent.

We know that when someone dies without a will, your closest relative receives your assets
that are not part of a living trust, life insurance policy, and retirement account. The law also excludes property in an account that automatically transfers to a co-owner as well as payable or transfer-on-death accounts.

If you are married and have no children, your spouse receives everything. If you have
children and no spouse, the children split everything. Your parents are next in line,
followed by your siblings. It seems fair enough and easy to understand, right? Let's take a
look at how these laws have played out in probate court.

Will the Real Will Please Step Forward?

Aretha Franklin died without a willor so we thought. Less than a year after her death,
twopossibly threehandwritten wills appeared. Three years later, Franklin's sons

discovered another will
that she appeared to be drafting with the help of a lawyer. The
latest will differs from the previous versions. Under this document, her son Clarence
becomes the beneficiary of a trust, and her other sons receive the bulk of her assets.

This version of the willone that many people might believe is the most valid simply
because she consulted a lawyerdiffers from the previous handwritten wills presented to
the court. One of them does not divide her estate evenly among her children, as her
youngest son stands to receive a greater share and Clarence receives less.

However, it also raises significant questions about what Franklin wanted to do with her
estate? Did she plan to divide it evenly and ensure that her mentally ill son would have the
means to take care of himself for the rest of his life? Had she decided to reduce his
inheritance out of fear that he might lose it all? The only person who knows for sure is not
here to answer that question. The court will decide.

Your Phone May Be More Than a Place to Store Photos

In 1998, Michigan passed the law that allows handwritten wills. It was still an analog world.
We were using dial-up internet and had cell phones that looked like handheld radios. The
first iPhone debuted nine years later. No one could imagine a handheld device that could
store a document like the will left behind by Duane Horton, Jr. in 2015.

The 21-year-old typed his will into his cell phone shortly before he died by suicide. He left
instructions in his journal indicating the document in his phone was, indeed, his will.
Among apologies to his friends and family and notes about funeral arrangements, Horton
explained what he wanted to happen with all of his belongings. He also added that he
wanted his half-sister to receive his trust fund and explicitly said he didn't want his mother
to receive anything.

Under Michigan law, Horton's mother would have been his sole heir. She challenged her
son's electronic will in court, claiming it did not meet the requirements for a holographic
will. The court carefully considered the document and found that Horton intended for it to
be his will regardless of the method he chose to write and store it.

Brainstorming is Just Part of the Process

Figuring out someone's wishes isn't always so easy. When Grace Reid died in 2011, two of
her friends presented a handwritten will to the court. According to this holographic will,
Reid decided to leave her estate to her friends, circumventing her half-siblings. She
inherited this estate from her parents, one of whom was also the parent of the people she
was ostensibly leaving out of her will.

Although the court accepted the handwritten document as a holographic will, it later
concluded that
it was a draft. Written on personal stationery, the will had notes written in
he margins that were sometimes illegible. Some of the instructions seemed to be incomplete, and others were contradictory. In fact, it appeared she decided later to include some of her siblings in the will after crossing through their names.

The court also considered an appointment Reid made with an attorney to write a will. In
that light, the handwritten document appeared to be a draft through which she sorted her
ideas. It decided she did not intend for the handwritten document to be her will and had
unfortunately died before she was able to finish the will through the attorney. Even if she
had originally planned the handwritten notes to be a will, meeting with a lawyer revoked it.

A question of intent

The common theme in these stories is the challenge of determining the intent of someone
who is no longer around to clarify it. To some, the idea that anyone would intentionally
disinherit a family member is unconscionable. When George Cecil Harris wrote he wanted
his wife to receive everything, few people would have questioned it. When Duane Horton
wanted to exclude his mother, those same people may have wondered why he would do
such a thing.

Yet, it happens. In Horton's case, he had a tense relationship with his mother, and she did
not dispute this. Yet, she still tried to position herself as his sole heir even though he
explicitly stated he did not want to leave anything to her. She actively tried to ignore her
son's wishes. One might argue that she was a grieving mother, but the court decided that
her strained relationship with her son was proof that his electronic will reflected what he

These strained relationships aren't always so clear, as we saw in Reid's case. The friends
who stood to benefit the most argued that she didn't get along with her siblings and had
accused them of abuse. How reliable were these friends who miraculously happened to
have a copy of the will that gave them everything? The only evidence was eventually ruled hearsay by the court and not allowed as evidence. Without Reid available to explain her thoughts, everyone was just guessing.

How will your loved ones know what you want?
The moral of the story? Don't leave your final wishes in the hands of the courtor friends
and relatives who may try to twist the law to their advantage. A holographic will may be
acceptable under Michigan law, but there's no guarantee that the court will follow through
with your instructions. Someone who believes they're entitled to your estate may ignore
your will and contest it. If they prevail, your wishes will no longer matter. Your estate will
go to whoever is entitled to receive it under Michigan law.

If you don't have a will, now is the time to speak with a Michigan lawyer who can talk to
you about how you want to settle your affairs. They can answer your questions and craft a
will that accurately reflects where you want your assets to go. Our team of professionals at
Great Lakes Family Probate & Estates PLLC is here to help you navigate this process.

 Call ustoday and work with a firm that takes time to understand you and your needs.

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