M Civ JI 170.08 Will Contests: Will - Writings Intended as Wills

In order to be a valid [ will / [ partial / complete ] revocation of a will / [ addition to / alteration of ] a will / [ partial / complete ] revival of a formerly revoked [ will / portion of a will ] ], a document or writing added upon a document that directs the disposition of the decedent’s property after death must have been executed in the manner required by law.

*If the document or writing added upon a document was not executed in the manner required by law, it is treated as if it were executed in the manner required by law if the proponent establishes by clear and convincing evidence that the decedent intended the document or writing to constitute [ a will / a partial or complete revocation of a will / an addition to or alteration of a will / a partial or complete revival of [ a formerly revoked will / a formerly revoked portion of the will ] ]. In determining the decedent’s intent, you must consider the contents of the [ document / writing ] and the surrounding facts and circumstances.

[ Name of party offering the document or writing ] has the burden of proving by clear and convincing evidence that the decedent intended the document or writing to constitute [ [ his / her ] will / a partial or complete revocation of [ his / her ] will / an addition to or alteration of [ his / her ] will / a partial or complete revival of [ a formerly revoked will / a formerly revoked portion of [ his / her ] will ] ].

Note on Use

This instruction should be preceded by the definition of clear and convincing evidence in M Civ JI 8.01 Meaning of Burden of Proof, and by the definition of a will and execution requirements in M Civ JI 170.02 Will Contests: Will/Codicil—Definition.

Comment

MCL 700.2503.

Section 2503 of the Estates and Protected Individuals Code (EPIC) makes a substantial departure from prior law by allowing any document or writing on a document to be admitted to probate to the extent the testator intended it to be his or her will, a partial or complete revocation of a will, an addition to or an alteration of a will, or a partial or complete revival of a formerly revoked will or revoked portion of a will. For effective date provisions of EPIC, see MCL 700.8101 reproduced in the Introduction to this chapter.

EPIC §2503 is identical in its essential language to §2-503 of the Uniform Probate Code (UPC) (1990). The comment to §2-503 of the UPC states that the intent of the provision is “to excuse a harmless error in complying with the formal requirements for executing or revoking a will.” However, the UPC comment urges that courts at the trial and appellate level police with rigor the clear and convincing evidentiary standard and “[ t]he larger the departure from Section 2-502 formality, the harder it will be to satisfy the court that the instrument reflects the testator’s intent.” The UPC comment indicates that provisions like §2-503 have been in effect in common-law jurisdictions in Australia (South Australia) and Canada (Manitoba).

History

M Civ JI 170.08 was added March 2001.​