In the Matter of the Estate of Cornor White, Deceased, _____ Mich App _____ (2004), #245021, 1/22/04
Return to Probate Review MenuCornor White and his wife signed a joint will on May 8, 1999, distributing their estate to approximately seventy friends and relatives. Wife died on November 29, 1999. No estate was opened for her and it appeared that her property went to Cornor White through joint ownership. Cornor White died on May 3, 2000. Petitioner, who would benefit from intestate succession, challenged the validity of the will. Petitioner claimed that the will was a joint and mutual will and since wife did not properly execute the will, the entire will is invalid. The probate court found that the will was a joint and reciprocal will, but not a mutual will. It held that the wife’s failure to properly execute the will did not invalidate the will as it pertained to Cornor White. Petitioner appealed.
The Court of Appeals affirmed the probate court. They agreed with the holding of the probate court that Cornor White and his wife did not execute a mutual will. The probate court had stated that, “The will does not express a mutually acknowledged promise consideration or obligation between the testators that the will is irrevocable.” The Court of Appeals also cited MCL 700.2514(2) which provides as follows:
The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.Since nothing in the will indicated that the will was irrevocable, they upheld the probate court’s determination that the will was not a joint and mutual will.
The Court of Appeals next addressed the issue of whether the failure of one testator to properly executed a joint and reciprocal will invalidated the entire will as to both testators. The Court held concerning the language of the joint and reciprocal will in this case alone that wife’s improper execution has no import on Cornor White’s execution of the will. Since the will is not a mutual will, the will is invalid and unenforceable as to wife and valid and enforceable as to Cornor White.
There are several important points to be learned from this case. First, a will which is executed by two testators is not a mutual will unless the language indicates the will is to be irrevocable. Second, if the will is a joint and reciprocal will rather than a mutual will, failure by one testator to properly execute the will may not invalidate the will as to the other testator. Third, attorneys should avoid drafting joint wills.
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Last updated 1-29-04
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