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Section 2503 Grows Up

Kids in suits

This just in – pretty big news – and pretty interesting – the Michigan Court of Appeals holds, in a published opinion, that a draft of a will, prepared by a lawyer, but never signed by her client, could be a valid will. Click on the name to read In re Estate of Attia.

EPIC (the current probate code) was adopted in 2000. It was a big deal in the probate world.  And while most of it was simply clean up, update and clarification work, there were a few new twists that came in with the new code – a few hot topics at the seminars – new concepts that had everyone wondering: Where is this was coming from? – and Where is it going to go?  One of the hottest topics of the day was section 2503.  Section 2503 says, essentially, that even if a document fails to meet the technical requirements for execution of will, and even if it is not a holographic will, it may be treated as a valid will if it can be shown by clear and convincing evidence that the testator intended it to be his/her will.  Before section 2503, a will either met the statutory signature and witnessing requirements of the probate code, met the requirements of a holographic will, or it was out.  Click here to read MCL 700.2503.

The argument for 2503 was that where you have a document that was clearly intended to be a person’s will, and they simply failed to meet a technicality, that document should be given effect – it’s only fair. The argument against the change was that this is the exception that will swallow the rule – someday this will be used to offer any sort of document as a person’s will – and the litigation will be endless.  Did I hear a gulp?

So in Attia, it appears that lawyer met with client, prepared a draft, and scheduled a date for signing. But client died before the document was signed.  Child A submits the draft as the last will under 2503.  Trial court dismisses on summary disposition, says 2503 can’t possibly be construed to mean that an unsigned document can come in as a valid will – certainly the testator’s signature is not one of the technicalities that can be disregarded.  Court of Appeals says, 2503 says what it says, and that means that if it can be shown by clear and convincing evidence that this document was intended to be a will, the lack of a signature from the testator is not controlling, the matter cannot be dismissed as a matter of law, and the proponent gets a chance to try and prove intent.

Fascinatingly, Michigan appears to be the first state to address this issue head on. The opinion cites a New Jersey case, but even there the testator had made some handwritten notes.  In Attia it isn’t even clear, nor does it appear to be relevant, whether the testator ever even saw this document.

So, it took us 16+ years to get here, but it seems that section 2503 is feeling all growed up – and asking for the keys to the car.

Sunday Morning Story: The Office in Abilene

Amys chairs cropped

Last week we had an open house for our Southfield Office. Please stop by sometime.  We’re at 26211 Central Park Blvd., Suite 200.

And while you’re there, you might notice that Amy Tripp’s office has some unusual decorations, including the cowhide chairs pictured above, as well as a poster of the John Wayne movie Red River.  If you have nothing better to do with the next ten minutes, here’s the story on that:

For those of you who don’t know, in Red River, Tom Dunson (played by John Wayne) sets out to start a cattle ranch in Texas. He heads west with a wagon train, but when he senses that the time is right, he leaves the wagon train and goes out on his own (with one old farmhand and one bull).  He soon runs across a child who has one cow with him (Matthew Garth).  Dunson takes on Garth and his cow.

Fast forward twenty years and the herd is huge, but they are a thousand miles away from any market (railroad station) at which the cattle could be sold. Hence, a cattle drive that no one has ever attempted, across territories fraught with danger.

They start out toward Sedalia (Missouri) where they know they can sell the cattle, but along the way they hear of a train into Abilene (Kansas), which, if true, would mean that they could significantly reduce the drive and avoid many of the most dangerous territories. The question is whether they continue on to Sedalia or redirect the herd to Abilene.

The two strong-willed cattlemen, old Dunson and young Garth, disagree on the direction of the herd. Dunson says they continue to Sedalia.  Garth is persuaded that they should take a chance on Abilene.  Until now, Garth has deferred to Dunson to make all the decisions, but he holds his ground, and, supported by the other cattle hands, drives off Dunson and takes command of the herd.  They continue to Abilene where there is a train, and the herd is sold – but Dunson returns with a posse and engages in a brutal fight with Garth.  Before one of them gets killed, Dunson realizes the error of his ways, acknowledges his love for Garth and the wise decision Garth made in redirecting the herd. Everyone makes up – and it’s all good.

For Amy and me, the movie captures much of what we have gone through in building this firm – the brutal disagreements, the difficult challenges we’ve faced, but also the unwavering trust we have had in each other that has always pulled us through. When things have been especially rough, we have re-watched our favorite movie, to remind ourselves that, in the end, our relationship and all that we’ve worked so hard to accomplish are more important than any disagreements – which at that moment seemed so crucial.

Unlike the prior offices we’ve opened, in which I have been intimately involved, opening the Southfield office was primarily Amy (and Chris Smith). I was happy to remain outside the metro Detroit area – Amy realized the time had come to go there. So, now we have an office in Southfield – or as Amy and I like to say: an office in Abilene

A Hospice Philosopher

talking smaller

I attended a memorial service this week. There was a lunch, and for part of the time I sat with a woman I had never met.  She was a friend of my aunt (the mother of my recently deceased cousin).  She told me that she was a hospice nurse.  She said she had been a nurse in a hospital for many years, but recently took a job with hospice.  It was a pay cut she explained, but an improvement to her quality of life – something she always wanted to do.

She explained that being a hospice nurse allowed her a more meaningful interaction with her patients – not the hospice patients themselves so much, but rather with the families that hospice served. She told me what she tells them:  That death could have come quickly and unexpectedly, so they should count themselves fortunate to have been given time – this opportunity to speak.

After I left the service, this conversation stuck with me. It made me think that in daily life, we talk about politics, television, popular music, the implications of a weather event in some other part of the country or the world. We communicate a lot, but often say very little – comfortable topics which serve to fill space in a conversation, and then people die, and so much remains unsaid – the important stuff.

I found myself wondering why it is so hard to be genuine and direct about the things we feel about each other? Why are we so cautious with our words?

There are many people I love and respect. And at this service, so many people I had not seen for a long time, and that I may never see again.

May the wisdom of this hospice nurse take root in me.