In re Estate of Horton: The Harmless Error Exception and Digital Wills
10.28.2024
In this digital age, the issue of electronic wills has become a topic of much discussion. In re Estate of Horton, a 2018 case decided by the Michigan Court of Appeals, is interesting not only because it involves the validity of an electronic will, but also because it involves the application of the harmless error doctrine.[i]
I first learned about Horton when my son, Connor, who was a student at Boston College Law School, called to tell me about an interesting trusts and estates case he had read about in class. Connor told me that Horton involved the validity of an electronic will and the harmless error rule. I replied, “Connor, thankfully we do not have to worry about either of those in New York.” Well, that may no longer be true.
In Horton, Duane Francis Horton committed suicide in December 2015 at the age of 21. Before he committed suicide, Horton handwrote an undated note in his journal stating that his “final note,” his “farewell,” was stored on his cellphone.[ii] The journal entry stated “[t]he app should be open. If not look on Evernote, ‘Last Note.’”[iii] Horton’s “final note” was a “typed document that existed only in electronic form” on Evernote, a note-taking application.[iv] As the court pointed out, in addition to “apologies and personal sentiments directed to specific individuals, religious comments, requests relating to his funeral arrangements and many self-deprecating comments,” the entry also contained a number of statements regarding how Horton wanted to dispose of his property.[v] Horton’s note stated that he wanted to give his guns to the couple he was then living with and his car to “Jody.”[vi] Horton further wrote that he wanted to give any property that previously belonged to his father or grandmother to his uncle.[vii] In addition, Horton directed that his trust fund should go to his half-sister and not to his mother.[viii] In the cellphone document, there were paragraphs addressed directly to Horton’s uncle and half-sister, Shella. Horton’s full name was typed at the end of the document, and no portion of the document was in Horton’s handwriting.
After Horton’s death, his mother, Lanora Jones, and his conservator/guardian, Guardianship and Alternatives, Inc., both filed probate petitions. The guardian argued that the Evernote document constituted a valid will.[ix] Horton’s mother, on the other hand, argued that the Evernote document did not constitute a valid will and that, therefore, Horton’s estate passed by intestacy.
Michigan law provides that a will is valid if it is in writing and signed by the testator and two witnesses.[x] Michigan law alternatively provides that a will is valid as a holographic will even if it is not witnessed by two witness so long as it is dated, signed by the testator, and the material portions of the document are in the testator’s handwriting.[xi] Michigan also has adopted the “harmless error” rule, which allows a will to be admitted to probate even if it does not meet all legal requirements.[xii] Michigan Compiled Laws Section 700.2503 provides, in part, as follows:
Although a document or writing added upon a document was not executed in compliance with section 2502, the 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 . . . [t]he decedent’s will. . . .
The court stated that the probate court had held an evidentiary hearing on whether the Evernote document constituted a valid will. The probate court concluded that the guardian had proved by clear and convincing evidence that Horton intended the Evernote document to be his will and then relied upon the harmless error rule to excuse the lack of compliance with the requirements set forth in the law. Horton’s mother appealed and argued that the document was merely “an attempt to make a holographic will.”[xiii] In addition, she argued that the harmless error exception could not be applied because it could not be “used to create a will when the document in question meets none of the requirements for a holographic will.”[xiv]
The court disagreed with the mother and affirmed the probate court’s decision.[xv] The court found that the harmless error doctrine was an “independent exception” to the usual will formalities.[xvi] The court also found that the probate court did not err in finding that the clear and convincing evidence standard had been satisfied.[xvii] In determining the validity of the will, the court looked at whether Horton “intended his farewell note to constitute a will” (testamentary intent) and finality (that the note was intended as final not a “mere draft” or “unexpected intention to leave a will”).[xviii] The court concluded that the note “was written with the decedent’s death in mind” and was “clearly intended to be read after the decedent’s death” since he made final farewells and requests concerning his funeral.[xix] The court also found that the finality element had been satisfied because Horton left the journal and phone containing the note in his room before leaving his home and committing suicide.
New York is considering legislation authorizing electronic wills. The proposed bill, which adds a new Part 6 to Article 3 of the New York Estates Powers and Trusts Laws, includes a harmless error exception.[xx] The proposed EPTL 3-6.6 is based on the harmless error exception language of the Uniform Probate Code.[xxi] Section 2-503 of the code provides that any “document or writing on a document” will be deemed properly executed if it can be established by clear and convincing evidence that the testator intended the document to be his or her will, a partial or complete revocation of a will, an addition to an alteration of a will or a partial or complete revival of his or her formerly revoked will or a formerly revoked portion of the will.[xxii] Proposed EPTL 3-6.6 would make the harmless error rule part of New York law. As outlined in New York Assembly A.7702, the proposed EPTL 3-6.6 is entitled “Harmless Error” and provides as follows:
Although a document or writing added upon a document was not executed in compliance with Section 3-2.1, the document or writing shall be 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:
- The decedent’s will.
- A partial or complete revocation of the decedent’s will.
- An addition to or alteration of the decedent’s will.
- A partial or complete revival of the decedent’s formerly revoked will or of a formerly revoked portion of the decedent’s will.
Thus, the lesson we can learn from Horton is that an electronic will statute involves a host of other issues impacting the execution and validity of wills. So, Connor, I retract what I said to you a few years ago when you called to tell me about Horton, as New York lawyers will most likely have to worry about electronic wills and the harmless error exception.
Lori A. Sullivan is a partner in the trusts and estates litigation and trusts and estates practice groups at Meltzer, Lippe, Goldstein & Brevitstone.
This article appears in a forthcoming issue of the Trusts and Estates Law Section Journal, the publication of the Trusts and Estates Law Section. For more information, please visit NYSBA.ORG/TRUSTS.
Endnotes
[i] Guardianship & Alternatives, Inc v Jones, 925 N.W. 2d 207 (2018); In re Estate of Horton, No. 339737 (Michigan Ct. App. July 17, 2018).
[ii] Id. at 209.
[iii] Id.
[iv] Id.
[v] Id.
[vi] Id.
[vii] Id.
[viii] Id.
[ix] Id.
[x] MCL § 700.2502(1).
[xi] MCL § 700.2502(2).
[xii] MCL § 700.2503.
[xiii] Guardianship & Alternatives, Inc v Jones, 925 N.W. 2d 207 (2018); In re Estate of Horton, No. 339737 (Michigan Ct. App. July 17, 2018).
[xiv] Id. at 210.
[xv] Id.
[xvi] Id. at 212.
[xvii] Id.
[xviii] Id.
[xix] Id.
[xx] New York Assembly (2023-A7702A).
[xxi] See UPC § 2-503.
[xxii] UPC § 2-503.
