COMMENTARY: Unconventional will cuts out mom from inheritance


By Marie E. Matyjaszek

On July 17, 2018, the Michigan Court of Appeals upheld an unconventional will left by 21-year-old Duane Horton II (See Michigan Court of Appeals Case No. 339737). Duane committed suicide in 2015, but before doing so, he wrote in his journal one last time. In the undated and handwritten entry, he referenced a note he had left on his cell phone. He provided the password and e-mail so that the note could be accessed.

On his cell phone, Duane had typed a will, detailing his belongings and the individuals he wished to inherit the items. He specifically left out his mother, stating, “If at all possible, make sure that my trust fund goes to my half-sister Shella, and only her. Not my mother.” 

Duane already had a court-appointed conservator, Guardianship and Alternatives, Inc. (GAI), and it filed to be the personal representative of his estate. Not surprisingly, Duane’s mother, Lanora Jones, also wanted to be the personal representative of her son’s estate.

The lower court in Berrien County determined that GAI had set forth “clear and convincing evidence” that Duane’s “electronic note was intended by decedent to constitute his will.”  Under MCL 700.2503, the probate court accepted the cell phone note as a valid will.

Duane’s mother appealed this ruling, arguing that the document could not be construed as a valid will under Michigan law.  She further believed that the lower court was incorrect in determining that GAI offered enough evidence to prove her son intended the document to be his will.

Michigan statute 700.2502 provides that a will must be in writing, signed by the testator (or by someone else at his direction and in his “conscious presence”) and witnessed by two individuals.  If all of these requirements are not met, it could still be considered a “holographic will,” so long as the document is dated, contains the testator’s signature and the meat and potatoes of the will are in his handwriting. 

MCL 700.2502 provides for exceptions to the requirements for a will – one of those is set forth in MCL 700.2503.  In part, MCL 700.2503 states that despite not complying with the formal statutory requirements of a will, a “document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute any of the following:  (a) The decedent’s will....”

In Duane’s case, the Court of Appeals found it very clear that he wrote the document knowing it would be read after his death; he offered apologies and said goodbye to those he was leaving behind.  The distribution of his property was also explicit, describing who he wanted to leave certain items to, and in this case, who he did not intend to inherit his estate.

The Court of Appeals concluded that Duane and his mother had “at best, a strained relationship,” which supported his decision to not leave anything to her. It upheld the lower court and affirmed that the cell phone note was indeed a valid will. This was one case where a mother’s love (or lack thereof) was not forgotten.
Marie E. Matyjaszek is an attorney referee at the Washtenaw County Friend of the Court; however, the views expressed in this column are her own. She can be reached by e-mailing her at