An Unsigned Copy, a Disinherited Sister, and a Will That Did Not Count

When someone dies, the family looks for the will. Sometimes all anyone can find is a copy. A Michigan Court of Appeals decision shows how difficult it can be to rely on a copy when no one can prove that a properly executed original ever existed, or that it was still in effect when the person died.

The case is In re Kayuk Estate (Michigan Court of Appeals No. 342313, decided March 28, 2019).

What happened

A man died in November 2016, and his estate went to the Macomb County Probate Court. After his death, his brother came forward with a copy of a will. The copy was unsigned and undated. The only clue to when it was written was the year 1993, which appeared in the document. Under the copy, the brother was the only surviving beneficiary and was named personal representative, the person who manages the estate. The copy also expressly disinherited the man’s sister. She objected to admitting it to probate, the court process for proving a will and settling an estate.

No original was ever found. The brother pointed to an incident in March 2012, when most of the contents of the man’s condominium were damaged. Friends and family threw out a large amount of debris, including ruined paperwork, over the man’s objections. The brother’s theory was that a properly executed original had been thrown out with it, by accident and against the man’s wishes.

The lawyer who prepared the will testified that, as a rule, an unsigned copy left his office only if the client had also properly executed a copy. The brother’s point was that the unsigned copy suggested a properly executed original had also existed. But the lawyer did not remember this will, or meeting with the man about it.

What the probate court decided

After a hearing at which witnesses testified, the Macomb County Probate Court held that the 1993 document was not a valid will and ruled that the man died without one. In legal terms, he died “intestate,” so his estate would pass under Michigan’s no-will rules rather than under the copy. The brother appealed.

What the Court of Appeals held

The Court of Appeals upheld (affirmed) that ruling in an unpublished opinion on March 28, 2019. The brother’s argument presented two related but distinct problems. The first was whether the unsigned copy itself could count as a will. The second was whether he could prove that a properly executed original once existed and was never revoked. The court rejected both, and either reason alone would have been enough.

Could the unsigned copy itself count as a will?

A Michigan will generally must be in writing, signed by the person making it, and signed by two witnesses (MCL 700.2502). A document that does not meet those requirements can still be treated as a will under MCL 700.2503, but only if the person offering it proves by clear and convincing evidence that the person who died intended it to be his will. The court described that standard as a heavy burden, well above the usual standard in civil cases.

The brother could not meet it. The probate court called the testimony “speculative,” and the Court of Appeals agreed that he had shown neither that the man intended the document to be his will (what the law calls testamentary intent) nor that a properly executed original had ever existed:

• The lawyer could describe only his usual practice. He could not say the man ever signed this will.
• The copy came from the brother, not from the lawyer.
• The copy said nothing about the man’s cats or his tools, although a friend testified that the man had wishes about who would get them.
• The man’s guardian and his sister did not know he had a will at all.

Could he prove a properly executed original that was never revoked?

The brother’s main theory was different: that the man had properly executed an original in 1993 and that it was lost in 2012. A claim like that requires proof of due execution, meaning the man’s signature and the signatures of two witnesses, and as noted above, the court found that proof lacking. But the court went further. Even assuming a properly executed original once existed, the court applied a rule from long-standing Michigan case law called the presumption of revocation. When a will was last known to be in the person’s possession and cannot be found after death, the law presumes the person destroyed it on purpose to revoke it. The presumption can be overcome, but only with evidence.

The brother pointed to the 2012 cleanup. The court acknowledged that it was possible the will had been destroyed by accident then, but explained that presumptions are generally overcome by evidence, “not by mere possibilities.” The only person who said the man had ever mentioned a will was the brother, who would inherit everything under it. The probate court found there was “no evidence whatsoever” that the will had not been revoked, and the Court of Appeals saw no clear error in that finding.

What the court did not decide

• The court did not find that the copy was fake or that the brother did anything improper. It held only that he had not proved what the law requires.
• The opinion does not say who inherits or in what shares. With no valid will, the estate passes under Michigan’s intestacy laws rather than under the 1993 document.
• The court did not say a copy can never be probated in Michigan. A copy can be admitted when the evidence is strong enough. Here it was not.
• The opinion is unpublished, so it does not bind other courts (MCR 7.215(C)(1)).
• The court applied rules Michigan courts have used for decades. The cases it relied on were decided before the Estates and Protected Individuals Code, Michigan’s main statute on wills and estates, was enacted. The court stated that the parties had identified no provision of the Code that altered the presumption of revocation, and that it knew of none.

What this means for your will

The man’s family spent a contested hearing and an appeal arguing over a document no one could prove. Whatever his final wishes may have been, the result turned on what could, and could not, be proved about a missing original. A few steps make that much less likely:

• Sign the will and have two witnesses sign it, as MCL 700.2502 requires. Proper execution avoids having to rely on MCL 700.2503 to excuse a signing or witnessing defect, and an unsigned draft or copy invites exactly the kind of fight in this case.
• Keep the original where it will be found: with the attorney who prepared it, in a fireproof safe at home that someone you trust can open, or on deposit, for a fee, with the probate court in the county where you live. Under MCL 700.2515, the court holds a sealed will, gives you a certificate of deposit, releases it during your life only to you or someone you authorize in writing, and opens it after your death.
• Tell your personal representative where the original is. In this case, neither the man’s guardian nor his sister knew a will existed.
• If your signed original is lost or damaged during your lifetime, sign a new will rather than relying on a copy.
• If you change your mind, put it in writing. Destroying a will with the intent to revoke it can revoke it (MCL 700.2507), but it leaves your family guessing. A new will that expressly revokes the old one is clearer.

If you already have a will, it is worth confirming where the signed original is today. If you do not have one, see what happens when a Michigan resident dies without a will. An estate planning lawyer can supervise the signing and help you decide where the original will be kept and who will know where it is.

Frequently asked questions

Is a copy of a will valid in Michigan?

Sometimes. If the document did not satisfy Michigan’s signing requirements, the person offering it may try to prove by clear and convincing evidence that the person who died intended that document to be a will. If the claim is instead that a properly executed original once existed but is now missing, the person offering the copy must prove that a properly executed original existed and address any applicable presumption that it was revoked. In this case, the unsigned copy failed on both routes.

What happens if the original will is lost?

A family member or other interested person can ask the probate court to admit a copy and offer evidence to support it. If the court does not admit it, the estate passes as if there were no will, under Michigan’s intestacy rules.

Where should I keep my original will?

Somewhere safe that the right person can reach after your death: with the attorney who prepared it, in a home safe someone you trust can open, or on deposit with your county probate court. Tell your personal representative where it is.

Related reading: what happens if you die without a will in Michigan, will vs. revocable living trust in Michigan, and working with an estate planning attorney.

Please note: This article is provided for general educational and informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship between you and the Law Offices of Maynard F. Newman, P.L.L.C. The law may change, and the outcome of any case depends on its specific facts; confirm the current law and consult a qualified attorney before acting. This content may also be considered attorney advertising.