In re Bem Estate

• Decision Date: 12 December 2001
• Docket Number: Docket No. 221549.
• Citation: 247 Mich. App. 427,637 N.W.2d 506
• Parties: In re ESTATE OF Joseph R. BEM, Deceased. Rosemarie Bem, Petitioner-Appellant, v. John A. Bem, Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

637 N.W.2d 506

247 Mich. App. 427

In re ESTATE OF Joseph R. BEM, Deceased.

Rosemarie Bem, Petitioner-Appellant, v. John A. Bem, Respondent-Appellee.

Docket No. 221549.

Court of Appeals of Michigan.

Submitted August 7, 2001, at Detroit.

Decided September 14, 2001, at 9:05 a.m.

Released for Publication December 12, 2001.

Pytell & Varchetti, P.C. (by Paul E. Varchetti) and Fitzgerald & Dakmak, P.C. (by Gerald F. Fitzgerald, Jr.), Grosse Pointe Farms, Detroit, for Rosemarie L. Bem.

Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman, P.C. (by David E. Sims, Detroit and Aaron H. Sherbin), Farmington Hills, for John A. Bem.

Before BANDSTRA, C.J., and WHITBECK and OWENS, JJ.

PER CURIAM.

Will contestant Rosemarie Bem appeals as of right the probate court's order admitting her father's holographic will. We affirm.

I. Basic Facts And Procedural History

On August 15, 1991, Joseph R. Bem, the testator, drafted a two-page will in his own handwriting.¹ Mr. Bem began the will by noting the date and stating, "Being of good health and right mind I write this just in case something should happen to me on the projected trip to Louisville, Kentucky for the Amvets National Convention (5:45 AM Aug. 16 to 10:PM [sic] Aug. 17, 1991)." Mr. Bem appointed his son, will proponent John A. Bem, as his personal representative, charging him to take care of all his "personal, financial and spiritual arrangements." Mr. Bem then proceeded to forgive a loan to his daughter, Mary Lou Ziarko, and list by number specific gifts of money and other personal property to family members, including a $1,000 devise to his other daughter, Rosemarie Bem. The will continued to enumerate these gifts on the top of the second page and ended approximately one-third of the way down the second page, stating, "Fourteenth = There are many more requests but for now this is all I desire to have done." In the middle of the page, at the end of all the text he had written on August 15, Mr. Bem signed his name. He wrote the date August 15, 1991, for a second time in the will, just under his signature.

Though this was the natural end to the holographic will, Mr. Bem subsequently added nine additional lines of text by hand just under this signature and date block. The first line states, "The trip to Louisville, KY was OK. (JRBem.) Aug 17, 1991[.]" A dash and what appears to be a notation of "10-30" immediately follows this date, with "PM" written directly beneath the "30" because of the lack of space at the end of the line. The second line notes, "Next trip is to Post 45 Buffalo N.Y. Oct 19, 1991 [,]" and appears grouped with the third line, which reads, "All Conditions remain the same as written" and ends "Aug 18, 1991 * JRBem." The fourth and fifth lines add new devises, stating, "Extra = Three Sisters = Bernice Burchart + Rose Brent + Genevieve Drew shall receive the sum of 1000 00 each. * J R Bem[.]" The fourth line breaks and the fifth line starts between "Genevieve" and "Drew." The date "10-17-91" appears squeezed under Mr. Bem's signature at the end of the fifth line because there is no additional room to write after the signature. The remaining four lines refer to other trips Mr. Bem took or planned to take:

Buffalo Trip Completed OK. All Conditions Remain the Same. Nov. 14. 1991 JRB.

To HAWAII Dec 5, 1991 All conditions Remain the Same. JRBem Dec 4 1991

To Las Vegas OK 1992 JRB

To Tennessee Oct XX-X-X-X-XXXX

After Mr. Bem's death, John Bem commenced probate proceedings. However, Rosemarie Bem, who would presumably take less under the will than if the probate court were to decide that the will was invalid and that her father had died intestate, decided to contest the will's validity. She claimed that the portion of the holographic will dated August 15, 1991, did not comply with M.C.L. § 700.123 because Mr. Bem had not signed and dated the document at the "end of the will" as required in the statute. Rosemarie Bem contended that the codicil adding the devises to Mr. Bem's sisters required Mr. Bem to republish the will in full. However, he had failed to do so because the signature on the fifth additional line should be read as if appearing elsewhere in the will and, therefore, he had omitted his signature following this codicil. She also argued that the will was conditioned on her father's death during the enumerated trips and, because he had not died on any of the trips, the condition precedent had not occurred to make the will effective.

The probate court, however, rejected each of these arguments. The probate court ruled that Mr. Bem had signed the August 15 will at the natural end, and that his codicil was valid because it was signed and dated. Further, the reference to Mr. Bem's trip to Louisville in the first line of the will did not make the document conditional or contingent; rather, according to the court, it was a statement of the motivating force behind Mr. Bem's decision to write a will. On appeal, Rosemarie Bem reiterates her original arguments.

II. Standard Of Review

When it is unnecessary to consider extrinsic evidence to interpret a will, as is almost always the case,² a probate court's findings are not factual in nature. Rather, as when interpreting a contract,³ the probate court, in restricting its analysis to the language of the will, engages in an inquiry to determine the legal effect of the words used. The legal effect of the language in the will ultimately determines how the personal representative must distribute the assets of the testator's estate.⁴ Thus, though we would accord the probate court in this case due deference and apply a clear error standard of review to any issues requiring factfinding,⁵ we review de novo the language used in Mr. Bem's will because its meaning presents a question of law.⁶ This de novo standard of review is also appropriate in this case because the probate court decided whether the will is valid in the context of Rosemarie Bem's motion for summary disposition⁷ and because, for the first issue in this appeal, we must interpret and apply the holographic will statute in the Revised Probate Code.⁸

III. Construction

The issues Rosemarie Bem raises in this appeal require us to engage in two types of construction: statutory construction and construction of the will. Because we use the principles of construction throughout this opinion, we think it provident to outline them at the outset.

This Court, in Guardian Industries Corp v. Dep't of Treasury,⁹ expressed the fundamental rules of statutory construction well when it wrote:

The primary goal of statutory interpretation is to give effect to the intent of the Legislature. This determination is accomplished by reviewing the plain language of the statute itself. If the statutory language is unambiguous, it is presumed that the Legislature intended the clearly expressed meaning, and judicial construction is neither required nor permitted. If the statutory language is ambiguous, only then may we look outside the statute to ascertain the Legislature's intent.

We must also take our interpretation of the holographic will statute and apply it to Mr. Bem's will. As in the context of statutory interpretation, the core purpose of interpreting wills is to give effect to the drafter's intent, limited only by applicable law.¹⁰ To carry out this intent, we must read the will "as a whole"¹¹ and "harmonize all the provisions, if possible, to that intent."¹² "Given the complexity of some wills, it would be counterproductive for this Court to hyperanalyze and overscrutinize" clear, plain language the testator used.¹³

IV. Holographic Will Formalities

A. Signature Requirement

At the time Mr. Bem died on November 3, 1998, the Revised Probate Code was in effect, not the new Estates and Protected Individuals Code.¹⁴ In M.C.L. § 700.122, the Revised Probate Code prescribed certain formalities, including the need for witnesses, for executing most wills. However, the Revised Probate Code also established a less formal type of will in M.C.L. § 700.123:

A will which does not comply with section 122 is valid as a holographic will, whether or not witnessed, if it is dated, if the signature appears at the end of the will and the material provisions are in the handwriting of the testator.¹⁵

Rosemarie Bem contends that Mr. Bem's will did not comply with this statute because he signed his will in the middle, having added unsigned devises to his sisters and additional lines below his signature following the dispositive language in the August 15 will. Thus, she claims, her father died intestate because the will is invalid.¹⁶

Michigan case law does not interpret this holographic will statute. Nevertheless, a case published long ago gives us insight into how we must view the requirements set forth in M.C.L. § 700.123. The Michigan Supreme Court, in Stone v. Holden,¹⁷ interpreteda formal will statute that required the testator to sign the will, but gave no specific direction concerning where or how that signature had to appear. The Court reversed the jury verdict in favor of the will contestant, who had challenged the will's validity on the basis that the testator's signature appeared only within the attestation clause.¹⁸ In reversing, the Court rejected the custom of other jurisdictions requiring this signature to appear at the end of the will, noting that it was a matter of "legislative policy" that required this formality for wills in those other states.¹⁹ Thus, Stone stands for the proposition that when the Legislature imposes conditions on a signature requirement, those conditions must be enforced as written. However, even in giving this deference to the Legislature, Stone makes clear that courts need not impose on wills any conditions or formalities not clearly reflected in the statute. Accordingly, it is plain to us from this holographic will statute that the Legislature intended that testators follow this formality of signing a holographic will at the "end." If this...