Rau v. Leidlein

687 N.W.2d 167, 262 Mich. App. 660
CourtMichigan Court of Appeals
DecidedJuly 1, 2004
DocketDocket No. 247516
StatusPublished
Cited by1 cases

This text of 687 N.W.2d 167 (Rau v. Leidlein) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rau v. Leidlein, 687 N.W.2d 167, 262 Mich. App. 660 (Mich. Ct. App. 2004).

Opinion

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, lia 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 NW2d 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 [663]*663the nonmoving party. Michigan Ed Employees Mut Ins Co v Turow, 242 Mich App 112, 114-115; 617 NW2d 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 NW2d 148 (1994), citing In re Thwaites Estate, 173 Mich App 697, 702; 434 NW2d 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] “[t]he 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 NW2d 914 (2004), quoting Rogers v Rogers, 136 Mich App 125, 130-131; 356 NW2d 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.

[664]*664Because 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, citing Thwaites, supra, at 702-703.

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 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 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 [665]*665create a contract to make a will. See Foulks v State Savings Bank, 362 Mich 13, 14, 16; 106 NW2d 221 (1960); Schondelmayer v Schondelmayer, 320 Mich 565, 571; 31 NW2d 721 (1948); Rogers, supra at 128. 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, citing Getchell v Tinker, 291 Mich 267, 270; 289 NW 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 Ha’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 NW 465 (1930), is misplaced because the language of the will in that case expressly created a life estate interest in the surviving spouse and limited the surviving spouse’s interest to a life estate. Unlike in Quarton, Herbert received a fee simple estate in the couple’s property at Ila’s death; hence, he was free to dispose of the property as he wished, and his beneficiaries were only entitled to the remainder.

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Related

In Re VanConett Estate
687 N.W.2d 167 (Michigan Court of Appeals, 2004)

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Bluebook (online)
687 N.W.2d 167, 262 Mich. App. 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rau-v-leidlein-michctapp-2004.