In re Estate of Bennett

• Decision Date: 15 May 2003
• Docket Number: Docket No. 237986.
• Citation: 662 N.W.2d 772,255 Mich. App. 545
• Parties: In re ESTATE OF John Smith BENNETT, Deceased. Comerica Bank, Personal Representative of the Estate of John Smith Bennett, Deceased, and Blanche Bennett, Petitioners-Appellees, v. Richard Bennett and Barbara Marko, Respondents-Appellants.
• Court: Court of Appeal of Michigan — District of US

662 N.W.2d 772

255 Mich. App. 545

In re ESTATE OF John Smith BENNETT, Deceased.

Comerica Bank, Personal Representative of the Estate of John Smith Bennett, Deceased, and Blanche Bennett, Petitioners-Appellees, v. Richard Bennett and Barbara Marko, Respondents-Appellants.

Docket No. 237986.

Court of Appeals of Michigan.

Submitted February 11, 2003, at Lansing.

Decided March 4, 2003, at 9:00 a.m.

Released for Publication May 15, 2003.

UAW-GM Legal Services Plan (by Laurin C. Roberts Thomas), Lansing, for the respondents. Before: NEFF, P.J., and BANDSTRA and KIRSTEN FRANK KELLY, JJ.

PER CURIAM.

This is an appeal from a probate court order of distribution of a residual estate after a trial with regard to objections to the personal representative's petition for complete estate settlement. We reverse and remand.

I

John Smith Bennett died on July 12, 2000. He left a will dated April 27, 1977, that bequeathed his entire estate to his wife, Aletha Bennett. The will further provided that in the event Aletha preceded John in death, the estate was bequeathed in equal shares to John's four natural children and his four stepchildren.¹ Aletha predeceased John and he remarried, but did not change his will.

The will was admitted to probate and the personal representative was appointed in accordance with the directions of the will. The assets of the estate were principally a car worth in excess of $10,000 and real property worth in excess of $132,000.² The personal representative petitioned the court to distribute the assets of the estate as follows: fifty percent to Blanche Bennett, John's surviving spouse, and 12-1/2 percent to each of John's four natural children named in his will.³

Objections to the distribution were filed claiming that Blanche was not entitled to anything from the estate because she had received her share outside the will, and that the stepchildren were entitled to their shares under the will along with the natural children. In the alternative, the objections claimed that even if Blanche was entitled to fifty percent of the estate, the stepchildren were still entitled to shares under the will equal to those of the natural children.

A trial was held with regard to the personal representative's petition for complete estate settlement and approval of the distribution noted above. The parties did not produce any witnesses and no exhibits were offered. The trial consisted of arguments by the attorneys for the personal representative and the objecting party regarding their differing positions concerning the proper distribution of the residual estate.⁴ The attorney representing Blanche merely supported the position taken by the personal representative, as did the attorney representing the interests of two of the natural children who were named in the will.

The probate court ruled from the bench following the arguments. The court held that John Smith Bennett intended to leave his estate to his wife and the eight named devisees in the will, the four natural children and the four stepchildren. He therefore ordered that Blanche was entitled to fifty percent of the estate, and the remaining fifty percent was to be divided equally among the four natural children and the four stepchildren named in the will as alternative beneficiaries of the estate. It is from this order that appellants, two of the natural children of John Smith Bennett, appeal.⁵

II

This case is controlled by the Estates and Protected Individuals Code (EPIC), M.C.L. § 700.1101 et seq. EPIC became effective on April 1, 2000. On the basis of the facts of this case, we hold that the plain language of the statute requires distribution of the estate in accordance with the petition of the personal representative.⁶

A

The standard of review on appeal in cases where a probate court sits without a jury is whether the court's findings are clearly erroneous. In re Williams Estate, 133 Mich.App. 1, 13, 349 N.W.2d 247 (1984). A finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made, even if there is evidence to support the finding. In re Wojan Estate, 126 Mich.App. 50, 52, 337 N.W.2d 308 (1983).

B

We need look no further than the plain language of M.C.L. § 700.2301 to determine that the probate court clearly erred in granting twenty-five percent of the residual estate to the stepchildren of the decedent, John Smith Bennett. Section 2301 of EPIC provides for the distribution of an estate where, as here, a testator's spouse married the testator after the testator executed his will. In that instance, the surviving spouse is entitled to take a portion of the estate as an intestate share. The intestate share of the surviving spouse is computed by deducting property devised to a child of the testator born before the testator's marriage to the surviving spouse and who is not also a child of the surviving spouse. The definition of "child" under EPIC does not include a stepchild. M.C.L. § 700.1103(f).

The specific, applicable language of M.C.L. § 700.2301 is:

(1) Except as provided in subsection (2), if a testator's surviving spouse marries the testator after the testator executes his or her will, the surviving spouse is entitled to receive, as an intestate share, not less than the value of the share of the estate the surviving spouse would have received if the testator died intestate as to that portion of the testator's estate, if any, that is not any of the following;

(a) Property devised to a child of the testator who was born before the testator married the surviving spouse and who is not the surviving spouse's child.

* * *

(3) In satisfying the share provided by this section, devises made by the will to the testator's surviving spouse, if any, are applied first, and other devises, other than a devise to a child of the testator who was born before the testator married the surviving spouse and who is not the surviving spouse's child or a devise or substitute gift under section 2603 or 2604 to a descendant of such a child, abate as provided in section 3902.

In the context of these facts, EPIC limits the assets available to satisfy the intestate share⁷ of the surviving spouse, Blanche, to that part of the estate not devised to the natural children, and it abates the devise to the stepchildren, who do not meet the statutory definition of "child." In other words, the statute provides that a surviving spouse in Blanche's position, i.e., one who married the testator after he executed his will, is entitled to an intestate share of her spouse's estate. The statute further provides the method for determining the intestate share Blanche may claim: look to the will, deduct the devises to the natural children, and pay the surviving spouse's statutory share under M.C.L. § 700.2102(1)(f)⁸ to the extent possible, from the remainder.

Under the will, the natural children would have taken fifty percent of the estate if John had not married Blanche, and they are entitled to that share. Blanche takes her intestate share from the remainder. Because the value of this estate is less than $200,000, there is less than $100,000 remaining after the fifty percent devise to the natural children. Thus, Blanche is entitled to the entire remaining amount pursuant to subsection 2102(1)(f), and the devises to the stepchildren are reduced to zero. The probate court clearly erred in failing to apply the dictates of the statute to the facts of this case.

C

In the trial court, the argument in opposition to the distribution requested by the personal representative was that the testator provided for the surviving spouse outside the will and that, therefore, Blanche was not entitled to an intestate share.⁹ In the alternative, the argument was that if Blanche was entitled to her intestate share of the estate, the share devised to the stepchildren did not abate.¹⁰ However, there was only unsubstantiated argument by counsel for the objecting party concerning the claimed transfers by way of jointly held funds and property outside the will. There was no evidence of the amount of the claimed transfers or of the source of the claimed transfers, i.e., whether the money and property came from the decedent's separate property, the surviving...