The probate Court can admit an unsigned will to probate if
the proponent of the will establishes, by clear and convincing evidence, that
the decedent intended the document to be his or her will. The Michigan Court of
Appeals (MCOA) reached this decision in a published opinion (In re Estate of Sabry Mohamed Attia).
Facts: Sabry
Attia, father of 4 children, died on Sept. 11, 2014. Attia executed a will on
July 8, 1986 and two codicils to the will, one on February 17, 2009 and the
other on February 1, 2013. Appellee Mayssa, personal representative, filed a
petition to probate the July 1986 will and two codicils. Appellant, Marvat,
filed an objection to the probate of the July, 1986 will and codicils and a petition
to admit an unsigned will to probate.
Marvat claimed the decedent directed his attorney,
to draft a new will and arranged to sign it on September 11, 2014, the day he
died. Marvat argues that although MCL 700.2502 requires a will to be signed,
MCL 2503 provides an exception to the signature requirement if the supporter of
the will shows by clear and convincing evidence that the decedent intended for
the document to be his will.
The Wayne County
Probate Court granted Mayssa’s Motion for Summary Disposition stating “I think
that the language in 2503, relates to a document which is executed but is
flawed in the execution. So, I think it’s a bright line rule in Michigan and I
certainly welcome the Court of Appeals to address it.”
The COA did address
it stating,
1. MCL 700.2503 permits the probate
of a will that doesn’t meet the requirements of MCL 700.2502.
2. One of the requirements is that
the will be signed by testator or a person chosen by the testator, in the
testator’s presence and at his direction. (MCL 700.2502(1)(b)
3. Thus, section 2503 allows admission
of a will that doesn’t meet the signature requirement in section 2502 as long
as the proponent establishes by clear and convincing evidence that the decedent
intended the document to be a will.
The COA didn’t find a Michigan case on point, but did find
persuasive a Superior Court of New Jersey, Appellate Division, decision
concluding that a New Jersey statute containing nearly identical language to
Michigan permits the probate of a will without a signature, but with clear and
convincing evidence that the testator intended the document to be a will.
The COA reversed the lower court and sent the matter back
for further proceedings.
Labels: appeal, appeals, Court of Appeals, Family, Law, MCL 700.2503, Michigan, Michigan Appeals, Michigan Family Law Appeals, probate appeal, probate of a will, unsigned will, Wayne County