IN RE EST OF CHARLES W WILHOITE DEC
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STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of CHARLES W. WILHOITE, Deceased.
DEBRA L. BAILEY, Personal Representative of
the Estate of CHARLES W. WILHOITE,
Deceased,
UNPUBLISHED
April 16, 2002
Petitioner-Appellee,
v
No. 228472
Washtenaw County
Probate Court
LC No. 00-000092-IE
COREY J. WILHOITE and STACIE D.
WILHOITE,
Respondents-Appellants.
Before: K.F. Kelly, P.J. and Doctoroff and Cavanagh, JJ.
MEMORANDUM.
Respondents appeal as of right the order admitting decedent’s will into probate. We
affirm in part and remand for further proceedings. This appeal is being decided without oral
argument pursuant to MCR 7.214(E).
Charles W. Wilhoite executed a will on January 7, 2000, providing for an equal
distribution of his estate among his three children, Debra Bailey, Corey Wilhoite, and Stacie
Wilhoite. On January 9, 2000, the three children signed a document agreeing to a dispersion of
property. Charles Wilhoite died on January 14, 2000. The probate court declined to enforce the
January 9th agreement, and admitted the will to probate.
Appellants assert that the agreement is enforceable under MCL 700.3914, which provides
in part:
(1) Subject to the rights of creditors and taxing authorities, competent
successors may agree among themselves to alter the interests, shares, or amounts
to which they are entitled under the will of the decedent, or under the laws of
intestacy, in any way that they provide in a written agreement executed by all who
are affected by its provisions.
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While a testator is still alive, he may alter the provisions of his will at any time. There
are no successors until after a testator had died. The probate court properly found that the statute
does not apply to an agreement reached prior to death of the testator.
The parties did not enter into a binding contract that is enforceable by a court. A
settlement agreement is a contract that is subject to legal principles applied to contracts
generally. Reed v Citizens Ins Co, 198 Mich App 443, 447; 499 NW2d 22 (1993). The
enforceability of a contract depends upon consideration. Hisaw v Hayes, 133 Mich App 639,
643; 350 NW2d 302 (1984). No consideration was identified in this case.
Appellee concedes that appellants properly filed objections to the admission of the will
that were not addressed by the probate court. On remand the probate court is to allow appellants
to present evidence that the will is invalid.
Affirmed in part and remanded for further proceedings consistent with this opinion. We
do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Martin M. Doctoroff
/s/ Mark J. Cavanagh
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