Can an Email Be a Will?


The right to dispose of property by a Will is statutory. For many years, this meant that in order to be valid, a Will had to meet certain statutory formalities, i.e. it had to be in writing, signed by the testator or by someone else at the testator’s direction, and signed by two witnesses who witnessed the testator’s signature or witnessed the testator’s acknowledgement of the signature or the Will. Alternatively, a Will could be valid as a holographic Will, whether or not witnessed, if it were dated and if the testator’s signature and the material portions of the Will were all in the testator’s handwriting.

These narrowly circumscribed rules were expanded with the adoption of MCL 700.2503 in 2000. Under this statute, a document that did not strictly conform to the above requirements could nevertheless be found to be a valid Will if the proponent established by clear and convincing evidence that the decedent intended the document to be his or her Will. This statute was intended to effectuate a decedent’s intent when a Will might otherwise fail due to minor defects.

In July of 2018, The Michigan Court of Appeals addressed an interesting case involving the application of MCL 700.2503: the issue of whether an electronic document, which is neither signed nor witnessed, can constitute a Will. The decedent in this case committed suicide in 2015. Before he committed suicide, he left a journal entry in his handwriting which 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’”[.] The journal entry gave an email address and password for evernote. The “final note” to which the decedent referred was a typewritten document with the decedent’s name typed at the end. No part of the document was in the decedent’s handwriting. It included, among other things, various messages of farewell and a paragraph regarding the distribution of the decedent’s property after his death.

A petition for probate was filed seeking the admission of the electronic document as the decedent’s Will. The decedent’s mother, who was estranged from the decedent, contested its admission. The trial court upheld the electronic writing as the decedent’s Will and the decedent’s mother appealed.

In its analysis, the Court of Appeals noted that under MCL 700.2503, “there are no specific formalities required for execution of the document, and any document or writing can constitute a will, provided the proponent of the will presents clear and convincing evidence to establish that the decedent intended the document to constitute his or her will.” In this case, the court found that the document was clearly written with the decedent’s death in mind and provided for the distribution of his property, strongly supporting the conclusion that the decedent intended the electronic writing to be his Will.

What should we take from this case?

First, you should not assume that it is no longer necessary to have a properly drafted Will that meets the statutory formalities. Keep in mind that the electronic writing in this case was recognized as the decedent’s Will only after a contested (and undoubtably expensive) court case that was ultimately decided on appeal. A document that does not meet the statutory formalities will always require, at a minimum, a hearing in order to be admitted as a Will, even if it is not contested.

Second, it will be up to the court to determine whether the proponent of a document has proven by clear and convincing evidence that the decedent intended the document in question to be a Will. This is a heavily factdriven analysis and different judges may differ in their analysis of whether a given set of facts constitutes “clear and convincing evidence”.

However, with all that being said, MCL 700.2503 does provide an avenue, and a hope, by which a decedent’s imperfect planning may yet effectuate his or her intent.