IN RE WHITE ESTATE
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STATE OF MICHIGAN
COURT OF APPEALS
__________________________________________
In the Matter of the Estate of CORNOR WHITE,
Deceased.
DAVID WHITE,
FOR PUBLICATION
January 22, 2004
9:05 a.m.
Petitioner-Appellant,
v
BERNICE BLOW, EULA COPELAND, DAVID
CROSS, and WILBERT RICHARDSON,
Respondents-Appellees.
No. 245021
Muskegon Probate Court
LC No. 00-076098-DE
Updated Copy
April 9, 2004
Before: Donofrio, P.J., and Griffin and Jansen, JJ.
PER CURIAM.
Petitioner appeals by leave granted an order of the probate court admitting Cornor
White's will to probate. Petitioner challenges the probate court's finding that the will at issue is
not a joint and mutual will. Petitioner also argues that because it is undisputed that Catherine
White's execution of the will was invalid, the entire will is invalid and the probate court erred
when it admitted the will to probate in the estate of Cornor White. We agree with the probate
court that the will at issue is a joint and reciprocal will, but not a mutual will, and also find that
Catherine White's failed execution of the joint will did not invalidate the will as it pertained to
Cornor White. We affirm. This case is being decided without oral argument pursuant to MCR
7.214(E).
Cornor White was born on October 17, 1915, and Catherine White was born on
December 24, 1918. The testators married but had no children. They purportedly signed a will
on May 8, 1999, distributing their estate to approximately seventy friends and relatives. The
estate was comprised of several rental properties and a barber shop business. A few months
later, on November 29, 1999, Catherine White died. No probate estate was opened for Catherine
White. Upon Catherine's death, property that was jointly owned went to Cornor White
regardless of the will. Any remainder property owned by Catherine White is subject to the
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probate court's determination of intestacy and not a matter of this appeal. Cornor White died the
following spring, on May 3, 2000.
A probate estate was opened for Cornor White. On January 15, 2002, petitioner, who
would benefit from intestate succession, challenged the validity of the will. Soon after, the
probate court entered an order ordering a bill of particulars. Petitioner furnished a bill of
particulars in March 2002, asserting that one of the two purported witnesses to the will "did not
see the two principals sign" and that "the other subscribing witness has built into the will a
$5,000 legacy to himself." Petitioner concluded in the bill of particulars that the will should be
disallowed as the last will and testament of both Catherine and Cornor White.
The two purported witnesses to the will, Theresa Pearce and attorney Charles Waugh,
gave their deposition testimony in March 2002. The parties do not dispute that Catherine
White's signature on the will was witnessed only by Waugh and not by two persons as required
by statute. Further, attorney Waugh could not remember whether Pearce was in the room when
Cornor White signed the will or if Pearce entered the room after both Catherine and Cornor
signed. Pearce testified that she was called into the room and both Cornor White's and Waugh's
signatures were on the will. Pearce also stated that Cornor White asked her to witness his will,
and then she noted the document stated that it was a will and then she witnessed the will in
Cornor White's presence. Waugh also testified that he both drafted the will and was the recipient
of a $5,000 bequest from the testators in their will. Waugh was removed as counsel as of August
29, 2001, as noted by a probate court docket entry.
In April 2002, petitioner moved for summary disposition, arguing again that the will
should be invalidated in its entirety. Respondents, who are devisees under the will, opposed
petitioner's motion and filed their own motion for summary disposition in May 2002. The
personal representative specifically declined to take a position on the motions. The probate court
heard arguments on the motions on June 11, 2002.
In a written opinion, the probate court found that the will was joint and reciprocal but not
mutual. The probate court found that the will constituted a single document expressing the
individual intentions of the testators "just as two separate wills would have done instead of this
one will." The will was "not necessarily mutual because the will does not express a mutually
acknowledged promise, consideration, or obligation between the testators that the will is
irrevocable." The probate court held that the will was invalid and unenforceable with regard to
Catherine White and that her assets will pass by intestacy. However, the probate court held that
the will was valid and enforceable with regard to Cornor White and that the will should be
admitted to probate to carry out his intentions. Hence, jointly owned assets would pass to Cornor
White by intestacy and then as directed in Cornor White's will. The probate court's opinion was
effectuated by an order dated August 12, 2002, admitting Cornor White's will to probate. This
appeal followed.
"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 Bennett Estate, 255 Mich App 545,
549; 662 NW2d 772 (2003). "A finding is clearly erroneous when a reviewing court is left with
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a definite and firm conviction that a mistake has been made, even if there is evidence to support
the finding." Id.
Petitioner argues that the trial court impermissibly made findings of disputed fact when it
found that the document at issue is not a joint and mutual will. Petitioner asserts that the
document should be construed as a joint and mutual will and attempts to persuade us to apply
Illinois law1 to this matter. Respondents argue that the probate court made no impermissible
findings of disputed fact and assert that the mere use of the words "joint" and "mutual" in the
will do not make the will a binding contract. Respondents also state that the will contains no
words indicating a contractual agreement between Catherine and Cornor White and no basis to
reach a conclusion that there was a contractual commitment to make the joint will irrevocable.
The probate court held that Cornor and Catherine White did not execute a mutual will.
"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." Rogers v Rogers, 136 Mich App 125, 130; 356 NW2d 288 (1984). "[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." Id. "[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." Id. at 130-131. Furthermore, MCL 700.2514(2) states: "The
execution of a joint will or mutual wills does not create a presumption of a contract not to revoke
the will or wills."
The probate court stated that, "the will does not express a mutually acknowledged
promise, consideration, or obligation between the testators that the will is irrevocable" and held
that the will was joint and reciprocal, but not mutual. After reviewing the language of the
document at issue and the relevant case law and statutory law, we agree with the probate court
that Cornor and Catherine White did not execute a mutual will. Nothing in the language of the
will indicates that the will is irrevocable. Accordingly, we find that the probate court did not
make any impermissible findings of fact and did not err when it found that the document at issue
is not a joint and mutual will.
Petitioner next argues in conjunction with the first issue, that the trial court erred as a
matter of law when it held that Catherine White's failure to properly execute the will did not
render the will invalid as it pertained to both Catherine White and Cornor White. As Michigan
courts have not yet addressed the specific factual scenario before us, petitioner again cites
Illinois law2 in support of his assertion that Catherine White's failure to properly execute the will
1
Young v Young, 210 Ill App 3d 912; 569 NE 2d 1 (1991).
2
Martin v Helms, 319 Ill 281; 149 NE 770 (1925); In the Matter of Estate of Edwards, 3 Ill 2d
116; 120 NE 2d 10 (1954).
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consequently renders the entire will invalid. Respondents took the opposite view, and the
probate court agreed, that the will is partially invalid and unenforceable with respect to Catherine
White only, but valid and enforceable with respect to Cornor White.
Our review has found a dearth of Michigan law in this area. However, the probate court's
holding comports with 79 Am Jur 2d Wills ยง 665, p 724, which provides, in pertinent part:
A will jointly executed by both spouses in which the dispositions made by
one spouse are separate from those made by the other may be valid as the will of
one spouse, even if it fails as the will of the other because he or she did not
understand the effect of his or her signature or the contents of the instrument.
However, an instrument purporting to be the will of both spouses with reciprocal
bequests is not valid as the will of the spouse who dies first if it is ineffective as
the will of the survivor because it was not legally executed by him or her, and the
will was made pursuant to an agreement and understanding between the spouses.
Concerning the language of the joint and reciprocal will in this case alone, we hold that
Catherine White's improper execution has no import on Cornor White's execution of the will.
And since this will is not a mutual will, we agree with the probate court that the will is invalid
and unenforceable with respect to Catherine White, and valid and enforceable with respect to
Cornor White.
Finally, petitioner raises in passing in his brief on appeal that the probate court
prematurely admitted Cornor White's will to probate without deciding if Cornor White's
execution of the will was proper. We disagree. We are convinced by respondents' argument, in
this case only, that petitioner waived this issue. Petitioner represented to the probate court that
the parties "pretty well agree as to the facts" at the hearing on the summary disposition motions.
He also stated to the probate court, when discussing the issue before the court in his summary
disposition motion, that "it is only a question of law based on those facts" referring to the effect
of Catherine White's failure to properly execute her will and whether invalid execution by
Catherine White invalidated the testamentary execution by Cornor White. We view these
assertions, coupled with the fact that petitioner did not raise the issue in his summary disposition
motion, as a concession that Cornor White's execution of the will was proper.
Affirmed.
/s/ Pat M. Donofrio
/s/ Richard A. Griffin
/s/ Kathleen Jansen
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