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In re Estate of Horton

Court of Appeals of Michigan

July 17, 2018

In re ESTATE OF DUANE FRANCIS HORTON II.
v.
LANORA JONES, Appellant. GUARDIANSHIP AND ALTERNATIVES, INC., Appellee,

          Berrien Probate Court LC No. 2016-000202-DE

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

          PER CURIAM.

         Will contestant Lanora Jones appeals as of right the order of the Berrien 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 was 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 email 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 trial 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 Estate of Bem, 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 ...


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