This Is Just a Note, Not a Will, Right? Holographic Wills

The purpose of Michigan's laws determining what documents will be respected as valid wills is to ensure, to the extent possible, that a decedent's intent is honored. People often make the mistake of believing that in order to be a valid will, a document must be relatively formal: typed, not hand-written, with witnesses, and notarized. However, in Michigan, it is not necessarily the case that these formalities must exist in order for a document to be considered a valid will that a probate court will admit and enforce.

In general, the formalities Michigan Law sets out for creation of a valid will are:

1. in writing (this includes typed or handwritten);

2. signed by the "testator" (the person who is directing what is to be done with their possessions upon their death); and

3. signed by two witnesses.

Note there is no requirement that a will be notarized.

However, the law also acknowledges that some unwitnessed documents likely accurately express a deceased person's intent and should be treated as a will as a result. Michigan statutes call these documents holographic wills.

In order for an unwitnessed document to be honored as a holographic will, it must have the following characteristics:

1. dated;

2. signed by the testator in the testator's handwriting; and

3. its material provisions (parts that say who the testator wants to receive property, who should be personal representative, etc.) are in the testator's handwriting.

Once you know this information, it is not unreasonable for you to ask: "If the Courts are willing to consider and enforce holographic wills, why bother with a will drafted by a lawyer that meets the formal requirements?"

The answer to that is: for so many reasons they cannot fit into a blog post intended to give useful information in 500 words or less. But future posts will provide examples of issues that arise that you need an attorney who focuses on estate planning and probate to navigate successfully.

The take away from this post is that if a loved one dies, please provide your probate attorney any document that your deceased loved one may have intended stand as their will, even if it seems like "just a note." Let your lawyer put their knowledge and experience to work to assist you in determining if the document should be submitted for probate.