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Cellphone File Admitted as Electronic Will in Michigan Probate Proceeding

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Electronic will

The law permitting a digital or electronic will is rapidly developing. We have written about the idea of an electronic will before, advising readers not to rely on this developing law. A recent appellate court decision approved what appears to be the first purely electronic will in American legal history. Even as electronic will laws have been adopted in Nevada, Indiana and Arizona, this first electronic or digital will comes not from one of those states, but from Michigan. And, by the way, special thanks to our friend and colleague Doug Chalgian, an ACTEC Fellow from Michigan, for first writing about the new Michigan case.

About the electronic will in question

Duane Horton was just twenty-one years old when he took his own life. A conservator had been appointed to manage his finances, suggesting that his young life was already troubled. Like any millennial, he appears to have been quite computer-literate.

After Duane died, his conservator found an Evernote file on his cellphone. It apologized for what he was contemplating, gave instructions for his funeral, and then said, in part:

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…. 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.

Was Duane’s cellphone note a “will”? It was unsigned, had no witnesses, and was not in his own handwriting. Under traditional American probate laws, it clearly would not qualify as a will, or even as a holographic will (which Michigan law would have recognized). Although he typed his full name at the very end of the Evernote entry, it was not a “signature” in the traditional sense of the word.

The handwritten note

Duane also kept a written journal. In an undated entry, and in his own hand, he had written:

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”

Following that entry Duane gave his Evernote login information, including his password. Though this entry was entirely in his own handwriting, it was neither dated nor signed.

The probate proceeding and the Court of Appeals

The personal representative of Duane’s estate asked the probate court to admit his Evernote file as his will. The court agreed, over Duane’s mother’s objection.

Duane’s mother argued that the file could not qualify as a will. Instead, she insisted, he had died intestate — that is, without a will at all. Because his father had died before him, that would mean that Duane’s entire estate would pass to his mother.

On her appeal, the Michigan Court of Appeals considered whether Duane’s electronic will was effective. The appellate court decided that it was clear that it reflected Duane’s wishes, and that he had prepared it. Under Michigan law, that was enough to qualify the Evernote file on his smartphone as his will. Estate of Horton, July 17, 2018.

How about in Arizona?

Would Duane’s cellphone file have been a valid will under Arizona law? After all, we’re one of the leading states in the country — one of only three with statutes recognizing electronic wills. Would this document qualify?

The result in Duane’s probate proceeding would almost certainly have gone the other way in Arizona. Here’s why:

  1. Arizona’s digital will law won’t even be effective until July 1, 2019.
  2. Even if the law was already effective, Duane’s note would not qualify under Arizona’s new statutory authority. Arizona’s law still requires two witnesses and a digital signature — Duane’s file would not meet those standards.
  3. Duane’s handwritten note would not qualify as a holographic will under Arizona law, because he did not sign it. If he had signed his name, and perhaps written something like “I incorporate the notes in my Evernote file” (and including that file’s name), might his journal have been a holographic will in Arizona? Perhaps — but please don’t rely on that stretch in your own estate planning.
  4. Michigan, like Arizona, is a Uniform Probate Code state. Unlike Arizona, Michigan has adopted revisions to the UPC that permit consideration of documents that don’t meet the formal requirements for a will. This is sometimes called the “harmless error” rule. Arizona has resisted that change, and it was what the Michigan Court of Appeals relied on to admit Duane’s Evernote file as his “will.”


Duane’s life and death were tragic. His reliance on his cellphone to organize the transition was ill-advised — though it was ultimately effective.

But here’s an irony about the legal issues involved in Duane’s probate: legal scholars are scrambling to keep up with changes in society and our expectations about formal documents. But they are struggling with the wrong issues. Duane and people like him are not desperate to sign wills that look just like their grandfathers’ but on their computers. Instead, they want and expect to handle their wills, trusts, powers of attorney — everything legal that they touch — just like the rest of their lives. To them, that means that there is no difference between their cellphones, computers, journals, or formal legal documents. We (the legal system) aren’t keeping up.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.