Guardianship & Alternatives, Inc. v. Jones (In re Horton)

• Decision Date: 17 July 2018
• Docket Number: No. 339737,339737
• Parties: IN RE ESTATE OF Duane Francis HORTON II. Guardianship and Alternatives, Inc., Appellee, v. Lanora Jones, Appellant.
• Court: Court of Appeal of Michigan — District of US

325 Mich.App. 325

925 N.W.2d 207

IN RE ESTATE OF Duane Francis HORTON II.Guardianship and Alternatives, Inc., Appellee,

v.Lanora Jones, Appellant.

No. 339737

Court of Appeals of Michigan.

Submitted July 11, 2018, at Grand Rapids.

Decided July 17, 2018, 9:20 a.m.

Willis Law (by Samuel R. Gilbertson ) for Lanora Jones.

Kotz Sangster Wysocki PC (by John R. Colip and Thomas J. Vitale ) for Guardianship and Alternatives, Inc.

Before: Hoekstra, P.J., and Murphy and Markey, JJ.

Per Curiam.

Will contestant Lanora Jones appeals as of right the order of the Berrien County Probate Court recognizing an electronic document as the valid will of her son, Duane Francis Horton II. Because the trial court did not err by concluding that Guardianship and Alternatives, Inc. (GAI) established by clear and convincing evidence that decedent intended his electronic note to constitute his will, we affirm.

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 is 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[.]"

The journal entry also provided an e-mail address and password for Evernote.

The "farewell" or "last note" referred to in decedent’s journal entry was 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:

Have my uncle go through my stuff, pick out the stuff that belonged to my dad and/or grandma, and take it. If there is something he doesn’t want, feel free to keep it and do with it what you will. My guns (aside from the shotgun that belonged to my dad) are your’s to do with what you will. Make sure my car goes to Jody if at all possible. If at all possible, make sure that my trust fund goes to my half-sister Shella, and only her. Not my mother. All of my other stuff is you’re do whatever you want with. I do ask that anything you well, you give 10% of the money to the church, 50% to my sister Shella, and the remaining 40% is your’s to do whatever you want with.

In addition, in a paragraph addressed directly to decedent’s uncle, the note contained the following statement: "Anything that I have that belonged to either Dad, or Grandma, is your’s to claim and do whatever you want with. If there is anything that you don’t want, please make sure Shane and Kara McLean get it." In a paragraph addressed to his half-sister, Shella, decedent also stated that "all" of his "money" was hers.

During decedent’s lifetime, he was subject to a conservatorship, and GAI served as his court-appointed conservator. GAI filed a petition for probate and appointment of a personal representative, nominating itself to serve as the personal representative of decedent’s estate. GAI maintained that decedent’s electronic "farewell" note qualified as decedent’s will. Jones filed a competing petition for probate and appointment of a personal representative in which she nominated herself to serve as the personal representative of decedent’s estate. In that petition, Jones alleged that decedent died intestate and that she was decedent’s sole heir. After an evidentiary hearing involving testimony from several witnesses, the probate court concluded that GAI presented clear and convincing evidence that decedent’s electronic note was intended by decedent to constitute his will. Therefore, the probate court recognized the document as a valid will under MCL 700.2503. Jones now appeals as of right.

On appeal, Jones argues that the probate court erred by recognizing decedent’s electronic note as a will under MCL 700.2503. Jones characterizes decedent’s note as an attempt to make a holographic will under MCL 700.2502(2), and Jones asserts that, while MCL 700.2503 allows a court to overlook minor, technical deficiencies in a will, it cannot be used to create a will when the document in question meets none of the requirements for a holographic will. Alternatively, as a factual matter, Jones argues that GAI failed to offer clear and convincing evidence that decedent intended the electronic note in this case to constitute his will as required by MCL 700.2503. We disagree.

I. STANDARD OF REVIEW AND RULES OF STATUTORY CONSTRUCTION

We review de novo the interpretation of statutes. In re Reisman Estate , 266 Mich. App. 522, 526, 702 N.W.2d 658 (2005). The interpretation of the language used in a will is also reviewed de novo as a question of law. In re Bem Estate , 247 Mich. App. 427, 433, 637 N.W.2d 506 (2001). "We review the probate court’s factual findings for clear error." In re Koehler Estate , 314 Mich. App. 667, 673-674, 888 N.W.2d 432 (2016). "A finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made, even if there is evidence to support the finding." Id . at 674, 888 N.W.2d 432 (quotation marks and citation omitted).

Regarding issues of statutory construction, our Supreme Court has explained:

The paramount rule of statutory interpretation is that we are to effect the intent of the Legislature. To do so, we begin with the statute’s language. If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written. In reviewing the statute’s language, every word should be given meaning, and we should avoid a construction that would render any part of the statute surplusage or nugatory. [ Wickens v. Oakwood Healthcare Sys. , 465 Mich. 53, 60, 631 N.W.2d 686 (2001) (citations omitted).]

II. ANALYSIS

"The right to make a disposition of property by means of a will is entirely statutory." In re Flury Estate , 218 Mich. App. 211, 215, 554 N.W.2d 39 (1996), mod. on other grounds 456 Mich. 869, 568 N.W.2d 832 (1997). The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq ., governs wills in Michigan. The provisions in EPIC must "be liberally construed and applied to promote its underlying purposes and policies," MCL 700.1201, including to "discover and make effective a decedent’s intent in distribution of the decedent’s property," MCL 700.1201(b).

In a contested will case, the proponent of a will bears "the burden of establishing prima facie proof of due execution ...." MCL 700.3407(1)(b). Generally, to be valid, a will must be executed in compliance with MCL 700.2502, which provides:

(1) Except as provided in subsection (2) and in sections 2503, 2506, and 2513, a will is valid only if it is all of the following:

(a) In writing.

(b) Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.

(c) Signed by at least 2 individuals, each of whom signed within a reasonable time after he or she witnessed either the signing of the will as described in subdivision (b) or the testator’s acknowledgment of that signature or acknowledgment of the will.

(2) A will that does not comply with subsection (1) is valid as a holographic will, whether or not witnessed, if it is dated, and if the testator’s signature and the document’s material portions are in the testator’s handwriting.

(3) Intent that the document constitutes a testator’s will can be established by extrinsic evidence, including, for a holographic will, portions of the document that are not in the testator’s handwriting.

As set forth in MCL 700.2502(1), there are specific formalities that are generally required to execute a valid will. However, as expressly stated in MCL 700.2502(1), there are several exceptions to these formalities, including less formal holographic wills allowed under MCL 700.2502(2) and the exception created by MCL 700.2503.¹ MCL 700.2503 states:

Although a document or writing added upon a document was not executed in compliance with section 2502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute any of the following:

(a) The decedent’s will.

(b) A partial or complete revocation of the decedent’s will.

(c) An addition to or an alteration of the decedent’s will.

(d) A partial or complete revival of the decedent’s formerly revoked will or of a formerly revoked portion of the decedent’s will.

"The plain language of MCL 700.2503 establishes that it permits the probate of a will that does not meet the requirements of MCL 700.2502." In re Attia Estate , 317 Mich. App. 705, 711, 895 N.W.2d 564 (2016). Indeed, other than requiring "a document or writing added upon a document," there are no particular formalities necessary to create a valid will under MCL 700.2503.²

Essentially, under MCL 700.2503, any document or writing can constitute a valid will provided that "the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute" the decedent’s will. MCL 700.2503. In considering the decedent’s intent, "EPIC permits the admission of extrinsic evidence in order to determine whether the decedent intended a document to constitute his or her will." In re Attia Estate , 317 Mich. App. at 709, 895 N.W.2d 564. See also MCL 700.2502(3).

In this case, it is undisputed that decedent’s typed, electronic note, which was unwitnessed and undated, does not meet either the formal requirements for a will under MCL 700.2502(1) or the...