In re VanConett Estate, Docket No. 247516.

• Decision Date: 15 September 2004
• Docket Number: Docket No. 247516.
• Citation: 687 N.W.2d 167,262 Mich. App. 660
• Parties: In re VANCONETT ESTATE. Floyd Rau, Personal Representative of the Estate of Herbert Lee VanConett, Deceased, Joyce Ann Florip, Karen Jean Peterson, and Sandra Lee Parachos, Plaintiffs-Appellants, v. Elizabeth M. Leidlein and Marianne Durussel, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

687 N.W.2d 167

262 Mich. App. 660

In re VANCONETT ESTATE.

Floyd Rau, Personal Representative of the Estate of Herbert Lee VanConett, Deceased, Joyce Ann Florip, Karen Jean Peterson, and Sandra Lee Parachos, Plaintiffs-Appellants, v. Elizabeth M. Leidlein and Marianne Durussel, Defendants-Appellees.

Docket No. 247516.

Court of Appeals of Michigan.

Submitted May 4, 2004, at Lansing.

Decided July 1, 2004, at 9:10 a.m.

Released for Publication September 15, 2004.

Martin & Martin (by Walter Martin, Jr.), Saginaw, for the plaintiffs.

Strobel, Meyer, Jaffke, Shinners & Ellsworth, PLLC (by Kirk C. Ellsworth), Saginaw, for Elizabeth Leidlein.

Jack A. Weinstein, P.C. (by Jack A. Weinstein), Saginaw, for Marianne DuRussel.

Before: MURRAY, P.J., and NEFF and DONOFRIO, JJ.

DONOFRIO, J.

Plaintiffs appeal as of right the probate court's order granting summary disposition in favor of defendants. This case involves the right of the decedent, Herbert Lee VanConett, to dispose of property following the death of his wife, Ila R. VanConett, under a mutual will made pursuant to a contract to make a will. After reviewing the record, we decide that the probate court erred in concluding that the VanConetts did not create a contract to make a will, and further decide that the beneficiaries of that contract had standing to bring an action to enforce it. The probate court did not err when it concluded that Herbert's will was revocable, however, the record is insufficient for us to determine whether Herbert revoked his will and whether that revocation breached the VanConetts' contract to make a will. Finally, we decide that the probate court did not err when it concluded that the estate did not have standing to bring a cause of action concerning the real property because the real property passed outside the VanConetts' wills. We affirm in part, reverse in part, and remand.

First, plaintiffs contend that the probate court erred in finding that the VanConetts did not create a contract to make a will. We review de novo the probate court's grant of summary disposition. Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003). We must review the record in the same manner as the probate court to determine whether the movant was entitled to judgment as a matter of law, by considering the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party. Michigan Ed. Employees Mut. Ins. Co. v. Turow, 242 Mich.App. 112, 114-115, 617 N.W.2d 725 (2000).

Although the VanConetts' wills contained identical and reciprocal provisions, this alone does not establish a contract to make a will. Soltis v. First of America Bank-Muskegon, 203 Mich.App. 435, 442, 513 N.W.2d 148 (1994), citing In re Thwaites Estate, 173 Mich.App. 697, 702, 434 N.W.2d 214 (1988).

"A will, although jointly executed by two persons, is not a contract, strictly speaking, since it is subject to change and represents simply a statement of the wishes of the testators as they exist at the time of execution.... [A] will jointly executed by two testators containing reciprocal bequests may be, under some circumstances, sufficient evidence to establish a contract to make the testamentary dispositions contained in such a will.... [T]he mere fact alone that two identical wills are made by a husband and wife does not suffice to establish an oral agreement to make mutual reciprocal wills, each binding on the other." ... Furthermore, MCL 700.2514(2) states: [that] "The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills." [In re Estate of White, 260 Mich.App. 416, 420-421, 677 N.W.2d 914 (2004), quoting Rogers v. Rogers, 136 Mich.App. 125, 130-131, 356 N.W.2d 288 (1984).]

Pursuant to MCL 700.2514(1), a contract to make a will, not to revoke a will, or to die intestate may be established only by one or more of the following:

(a) Provisions of a will stating material provisions of the contract.

(b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.

(c) A writing signed by the decedent evidencing the contract.

Because plaintiffs seek specific performance of the contract to transfer property under a will, they have the burden of proving the contract. Soltis, supra, at 442, 513 N.W.2d 148, citing Thwaites, supra, at 702-703, 434 N.W.2d 214.

The decedent's will referenced a contract or agreement with his wife, but the parties dispute whether the contract's material provisions were provided. Plaintiffs contend that the VanConetts' wills provided the following contract terms: (1) at the first spouse's death, after payment of all debts, expenses, etc., all of the VanConetts' property would go to the surviving spouse, and the surviving spouse's will would become irrevocable; and (2) at the surviving spouse's death, all of the couple's property would go to the beneficiaries designated in the third paragraph of their respective wills. Defendants assert that the will does not provide material provisions, but merely references an independent agreement that does not exist. Defendants argue that the decedent's acts to revoke the will and his transfer of property after his wife's death demonstrate that the couple did not intend to form a contract.

We conclude that the probate court erred in finding that no contract existed. A review of the wills reveals a clear expression of the VanConetts' intent to enter a contract. Both wills state, "I hereby expressly acknowledge that this Will is made pursuant to a contract or agreement." (Emphasis added.) Each will then states the material provisions of the contract, that the couple would dispose of their property in the manner expressed in their wills and that the surviving spouse's will would become irrevocable at the first spouse's death. Specific bequests present in each will provide additional contract provisions, and each will was signed. After review of the wills in light of applicable statutory and case law, we conclude that the VanConetts did create a contract to make a will. See Foulks v. State Savings Bank, 362 Mich. 13, 14, 16, 106 N.W.2d 221 (1960); Schondelmayer v. Schondelmayer, 320 Mich. 565, 571, 31 N.W.2d 721 (1948); Rogers, supra at 128, 356 N.W.2d 288. Also, when Ila VanConnet died, the couple's agreement became irrevocable, and plaintiffs became vested with a right of action to seek specific enforcement of the VanConetts' contract. Schondelmayer, supra at 572, 31 N.W.2d 721, citing Getchell v. Tinker, 291 Mich. 267, 270, 289 N.W. 156 (1939).

Plaintiffs next argue that the couple's contract provided that the surviving spouse would receive merely a life estate interest in the couple's real property at the first spouse's death, with the property passing in fee to the named beneficiaries when the surviving spouse died. Thus, plaintiffs argue, Herbert had no right to dispose of or transfer the couple's real property. Defendants counter that the contract and the wills did not contain this restriction, and assert that Herbert gained a fee interest in the property at Ila's death and the beneficiaries of Herbert's will were entitled merely to whatever remained in the estate at Herbert's death.

Our reading of the wills reveals that the couple's contract contained no language restricting the surviving spouse's interest in the property to a life estate, and therefore find defendants' argument persuasive. We note that plaintiffs' reliance on Quarton v. Barton, 249 Mich. 474, 229 N.W. 465 (1930), is misplaced because the language of the will in ...