Signing Wills Electronically: The Good, the Bad, and Michigan

By Jeffrey L. Blankstein

Technology has become enmeshed in many aspects of the law. Many documents can now be signed electronically, without the need to circulate legal documents among the parties for signatures.  These types of documents can include real estate contracts, mortgage documents, and banking documents.

Specifically excluded from this list is a person’s Last Will and Testament.  Most Wills are not contested, and the process of probating a Will is streamlined when everyone agrees to not object to the Court’s acceptance of the Will. However, if a Will is contested, then many problems can arise if there was an electronic signature.  For example, how would the Court know whether the person who passed away actually pushed the button on the computer and “signed” the document?  Potentially, it could have been one of the beneficiaries.  This issue would not occur with real estate transactions, because all of the parties are alive and could state their intentions.

The usual objections when contesting a Will are either a lack of competency, undue influence, or neglecting to follow the formal rules required when signing a Will (e.g. the presence of two witnesses, and an oral declaration that the person acknowledges that he or she is signing a Will).  If Courts were to accept an electronic signature, then it would be difficult to contest a Will.  For example, if a person was incompetent, but was able to push a button on a computer, should the Will be upheld?  If the person sitting at the computer was pressured into signing, but no one else was there (without any witnesses), how would the court know?  For all of these reasons and more, New York statutes do not permit the Surrogate’s Court to accept a Will which was signed electronically.

HOWEVER, a Court in Michigan has accepted a Will which was not signed by the person who passed away.  In fact, the “Will” was not on a piece of paper, was not signed, and was not witnessed. The Michigan Court of Appeals, in In re Estate of Horton, accepted the “Will” prepared by a person who had committed suicide.  One of the decedent’s last acts was to write his wishes on a note taking app on his phone.  After he passed, a note in his journal stated that the reader should read his “final note” listed in the app.  The note left most of his assets to his uncle and half-sister and it disinherited his mother.  There were no handwritten documents. The probate court held an evidentiary hearing to determine whether the document would be accepted as a Will. The court held that the note contained the intent of the decedent. However, there still was the problem of the “signature.”  The Court pointed to a rule in Michigan (which does not exist in New York) usually called the “harmless error rule.”  That rule permits a court to accept a Will if there is evidence establishing that the document or writing was intended to be the decedent’s Will. The Court held that the note would be treated as a Will.

The mother appealed the court’s decision.  The appellate Court upheld the lower court’s decision, specifically citing the “harmless error rule.”  The Court held that an actual signature was not needed, and that two witnesses were not needed.  The judges looked at what the decedent intended to accomplish when he wrote his “note.”  The Court looked at the circumstances surrounding the making of the note, including that the decedent wrote the note in anticipation of his death, and eventual suicide.

This result would not have occurred in New York because New York does not have a “harmless error rule.”  However, the rule is now being discussed in legal circles because the harmless error rule has been proposed in a new bill in the New York legislature.  It is still in the early stages, but there is the possibility it may be passed in the future.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact Jeffrey Blankstein who counsels clients on estate and retirement planning, individual taxation, real estate and litigation. Mr. Blankstein is admitted to practice law in New York.