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Michigan: Man’s Final Words on Cell Phone Count as Last Will & Testament

The decedent, Duane Francis Horton II, committed suicide in December 2015, at the age of 21. Before he committed suicide, decedent left an undated, handwritten, journal entry. There is no dispute that the journal entry was in decedent's handwriting. The journal entry stated:

I am truly sorry about this . . . My final note, my farewell is on my phone. The app should be open. If not look on evernote, "Last Note"[.]

A password was also provided and the electronic document was accessed.  The "farewell" or "last note" referred to in decedent's journal entry was found to be a typed document that existed only in electronic form. Decedent's full name was typed at the end of the document. No portion of the document was in decedent's handwriting. The document contained apologies and personal sentiments directed to specific individuals, religious comments, requests relating to his funeral arrangements, and many self-deprecating comments. The document also contained one full paragraph regarding the distribution of decedent's property after his death.

The Michigan Court of Appeals found that it was undisputed that decedent's typed, electronic note, which was unwitnessed and undated, did 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). Instead, the validity of the will turned on the applicability of MCL 700.2503 and whether the trial court erred by concluding that plaintiff presented clear and convincing evidence that decedent intended the electronic document to constitute his will.

The Michigan Court of Appeals agreed with the trial court's conclusion that the document expressed decedent's testamentary intent. On the face of the document, it was apparent that the document was written with decedent's death in mind; indeed, the document was clearly intended to be read after decedent's death. The note contained apologies and explanations for his suicide, comments relating to decedent's views on God and the afterlife, final farewells and advice to loved ones and friends, and it contained requests regarding his funeral. The Court found that in what is clearly a final note to be read upon decedent's death, the document then clearly dictated the distribution of his property after his death. Specifically, decedent was clear that he did not want his mother to receive the remains of the trust fund. Decedent stated that the money in his trust fund was for his half-sister and he wanted his uncle to receive any of his personal belongings that came from his father and grandmother. The Court held that the note was distinctly testamentary in character and the document itself provides support for the conclusion that decedent intended for the note to constitute his will.

What are your thoughts as to the Michigan Court of Appeals’ holding?  Make your comments below. 

Lexis Advance® subscribers can access the full opinion at:  Guardianship & Alts., Inc. v. Jones (In re Estate of Horton), No. 339737, 2018 Mich. App. LEXIS 2813, at *8 (Ct. App. July 17, 2018)



Author:  Gabriela Nolen, Lexis-Nexis Case Law Editor

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