Under current Michigan Law, for there to be a valid will there must be a 1) writing, 2) signature by the testator (person creating the will), and 3) attestation and signature by two witnesses. MCL 700.2502(1). A will that does not comply with the above requirements may still be valid as a holographic will if it is dated, and if the testator's signature and the document's material portions are in the testator's handwriting. MCL 700.2502(2).
“[I]t is the duty of the courts to carry out as nearly as possible the intent of a testator or testatrix as to the distribution of an estate in so far as such intent has been expressed in the lawful provisions of a will.” In re Howlett’s Estate, 275 Mich 596, 600-601; 267 NW 743 (1936). Therefore, if you or a loved one have a specific intention on the distribution of property, it is important that those instructions are provided clearly in writing.
Ambiguous instructions were at issue In re Dechow Estate, Unpublished Court of Appeals Case No. 71607 (Decided October 22, 2019) where the decedent’s 2016 will contained the following instructions regarding personal property:
Note: any other assets held jointly between myself and my children (e.g., coins, investments, vehicles, checking and savings accounts) are not part of the “TRUST” and are bequeathed to the joint holder.
The will did not provide a definition of, or explain “joint holder.”
Following the death of the testator, a son distributed coins in his possession to his siblings that he and his father (the decedent) had collected together. One of the siblings contested the 2016 will and following a settlement of that dispute, the probate court ordered the appointment of an independent personal representative and also ordered the return of each children’s portion of the estate that had been distributed to them. However, one of the kids returned only a portion of the coins distributed to her and instead sent a check for the value of the coins. Following receipt of the coins, the appointed personal representative petitioned the probate court to approve the distribution of the coins to the son who had originally distributed the coins to his siblings. One of the siblings objected to the petition. Following a hearing, the court found that the son was clearly the only sibling that could be considered a joint holder of any of the coins. However, the court also found that the son’s distribution to family members following the death of their father was a valid gift that did not need to be returned. As a result, the siblings were allowed to keep the coins that had been given to them.
The Dechow Estate case illustrates the importance of a carefully drafted will as well as potential issues that can arise with the distribution of assets. If you or a loved need assistance with estate planning and/or administration, we can help.
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