Anticipation of Litigation Advisor

IN RE ESTATE OF HORTON: A CASE STUDY IN THE ANTICIPATED ACCEPTANCE OF ELECTRONIC WILLS AND ASSOCIATED LITIGATION

April 23, 2019

By: Valerie F. Gainer

Technology is rapidly revolutionizing the way lawyers engage in discovery, analyze data, and formulate case strategy.[i] While the practice of law is quickly evolving to keep pace with an ever-shifting technological landscape, the law itself is often slower to adapt. One shift that seems inevitable, although potentially fraught with danger, is the use of electronic wills. Electronic wills are not yet widely recognized as valid testamentary instruments, but many estate planners anticipate (with dread) that legislatures across the country will begin to enact statutes recognizing the electronic will as a valid and binding expression of testamentary intent. Nevada, for example, has already adopted legislation permitting the use of electronic wills.[ii]

Some estate planners fear that the use of electronic wills may result in an increase of undue influence and fraud, and, consequently, a corresponding rise in estate litigation. If the recent Michigan case of In re Estate of Horton is any indication, however, some jurisdictions may be litigating “electronic wills” prior to enacting legislation specifically sanctioning the use of the same.

In the Horton case, the Michigan Court of Appeals considered whether an electronic instrument that did not satisfy will formalities could still function as a valid will.[iii] The decedent in this case, Duane Francis Horton II, tragically committed suicide in December 2015.[iv] Before his death, Duane created “an undated, handwritten journal entry” which read “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.’”[v] “The journal entry also provided an e-mail address and password for Evernote.”[vi] The electronic note Duane referred to in his journal entry “was a typed document that existed only in electronic form” with Duane’s “full name [] typed at the end of the document.”[vii] A portion of the electronic note dealt with the distribution of Duane’s property following his death.[viii]

Two competing petitions for probate were filed regarding Duane’s estate: one by GAI, the entity which had served as conservator for Duane, and one by Lanora Jones, Duane’s mother.[ix] GAI contended that the electronic note was Duane’s will, while Jones argued that Duane had died intestate.[x] The probate court concluded that the electronic note qualified as Duane’s will under state statute (MCL 700.2503).[xi] Jones appealed, “characteriz[ing] decedent’s note as an attempt to make a holographic will under MCL 700.2502(2), and . . . assert[ing] 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.”[xii]

Pursuant to MCL 700.2503, a document that does not satisfy statutorily mandated will formalities may still be treated as if it complies with statutory requirements if “the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute” one of a few statutorily established options, including “[t]he decedent’s will.”[xiii]

In its analysis, the Court acknowledged that Duane’s electronic note did not satisfy the requirements for a will or a holographic will under Michigan law but found no error in the probate court’s decision that Duane intended his electronic note to serve as his will.[xiv] The Court concluded the electronic note was testamentary in nature.[xv] The contents of the note, including “apologies and explanations for his suicide, comments relating to decedent’s view on God and the afterlife, final farewells and advice to loved ones and friends, and . . . requests regarding his funeral,” evidenced Duane’s intention that the note “be read upon [his] death.”[xvi] It was in this note that Duane included information regarding “the distribution of his property after his death.”[xvii] Additionally, the Court agreed that the probate court “reasonably concluded that the electronic note was written ‘in anticipation of [Duane’s] imminent death by his own hands.’”[xviii] The Court explained that Duane’s directive in the electronic note that “he did not want his mother to receive the remains of the trust fund,” in light of his “strained relationship with his mother,” “support[ed] the conclusion that [Duane] intended for the electronic note to govern the posthumous distribution of his property to ensure that his mother, who would otherwise be his heir, did not inherit from him.”[xix] Thus, the probate court’s decision to treat the electronic note as Duane’s will was upheld.[xx]

With technology permeating almost every aspect of our lives, no surprise that technology is becoming increasingly relevant in planning for our deaths. The intersection between technology and estate planning may be a source of increased litigation in the years to come. While every state may not have a counterpart to the Michigan statute which allowed the Court to overlook the informalities of Duane’s electronic testamentary instrument, Horton is still a good reminder that ever-changing technology has real consequences for litigation, estate planning, and the practice of law in general.

[i] See Kent Goss, Shari Ross Lahlou, and Brian Paul Gearing, Welcome to Your New War Room, Crowell & Moring's Litigation Forecast 2019 (January 9, 2019).
[ii] See generally, Nev. Rev. Stat. Ann. § 133.085.
[iii] 325 Mich. App. 325 (2018).
[iv] Id. at *1.
[v] Id.
[vi] Id.
[vii] Id.
[viii] Id.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Id. at *1-2.
[xiii] Id. at *3.
[xiv] Id. at *3-4.
[xv] Id. at *5.
[xvi] Id.
[xvii] Id.
[xviii] Id.
[xix] Id.
[xx] Id. at *6.

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