In re VanConett Estate, _____ Mich App _____ (2004), #247516, 7/1/04
Return to Probate Review MenuThis 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. Plaintiffs contended 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. The probate court granted summary disposition in favor of defendants. It found that the VanConetts did not create a contract to make a will, decedent’s will was revocable, there was a presumption that decedent revoked his will and the estate lacked standing to bring an action to recover real property. Plaintiffs appealed. The Court of Appeals affirmed in part, reversed in part and remanded.
The Court of Appeals held that the probate court erred in finding the VanConetts did not create a contract to make a will. They cited MCL 700.2514(1) which provides that 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.They pointed out that although wills contain identical and reciprocal provisions, this alone does not establish a contract to make a will. However, in the present case, the VanConett wills reveal and clearly express their intent to enter into a contract. Both wills state, “I hereby expressly acknowledge that this will is made pursuant to a contract or agreement.” 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 spouses 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.(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.
The Court of Appeals rejected plaintiff’s contention that the surviving spouse would receive merely a life estate interest in the couple’s real property at the first spouse’s death and, therefore, the surviving spouse had no right to dispose of or transfer the couple’s real property. They found no language in the wills that the couple’s contract restricted the surviving spouse’s interest in the property to a life estate. Herbert received a fee simple estate in the couple’s property at Ila’s death. He was free to dispose of the property as he wished and his beneficiaries were only entitled to the remainder.
The Court of Appeals agreed with the probate court that decedent’s will was revocable They held that when parties enter a contract to make a will, the contract, rather than the will itself, becomes irrevocable by the survivor after the death of a party. Decedent had the right to revoke his will, but he could not revoke the parties’ contract. To the extent any subsequent wills contradicted the contract, there would be a right to seek specific performance of the agreement.
Finally, the Court of Appeals held that the estate lacked standing to bring an action to recover real property. They found that the real property was held by the VanConnetts as joint tenants. Because title passed instantly at Ila’s death, it would not have been part of her estate and would not be covered by the couple’s contract to make a will. Therefore, the estate had no right to seek its return. Language in the wills referring to such joint property could not destroy the survivorship rights since a will has no effect until the testator’s death. No authority suggests that merely expressing a desire to end a joint tenancy carries out the task of terminating such joint tenancy. Therefore, the property passed to Herbert immediately at Ila’s death and the estate can not seek its return to the estate.
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