In re Estate of Richard L. McKim, Deceased ___Mich App___ (1999) #211169, 11-5-99
Return to Probate Review MenuPetitioner, a non-relative, lived with the decedent from 1989 until his death in 1997. In 1993, petitioner and the decedent agreed that, upon his death, she would inherit his house and $100,000 under the terms of his will. Petitioner stated the bequests were to compensate her for taking care of the decedent during his lifetime and to maintain the quality of life to which she became accustomed while she was living with him. The decedent died without a will, leaving three heirs-at-law. Petitioner filed a claim alleging that she was contractually entitled to the bequest. She did not allege or offer any writing signed by the deceased evidencing the alleged contract. In granting summary disposition for respondent, the probate court ruled that petitioner’s claim was barred by MCL 700.140; MSA 27.5140, governing the enforcement of agreements to make a will or devise, and the reasoning of In re Lewis Estate, 168 Mich App 70 (1988).
The Court of Appeals affirmed the trial court. They first rejected the argument that the probate court erred in applying MCL 700.140; MSA 27.5140 to bar her claim against the estate. That section provides as follows:
(1) A contract to make a will or devise, not to revoke a will or devise, or to die intestate, if executed after the effective date of this act, can be established only by one of the following;
(a) A provision 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.
(2) The execution of a joint will or mutual wills does not give rise to a presumption of a contract not to revoke the will or wills.
The Court of Appeals stated that the party seeking specific performance of a contract to leave property under a will has the burden of proving the contract. Petitioner was required to prove an actual express agreement and not a mere unexecuted intention
The Court of Appeals next addressed petitioner’s argument that she had a right to the enforcement of the agreement under the common law theories of contract implied in law and contract implied in fact. They concluded that the statute precluded enforcement of an oral agreement concerning a bequest under a contract implied in fact theory. The clear language of the statute, especially when combined with other provisions of the probate code which bar the enforcement of oral wills evidences the Legislature’s intent to bar agreement to make a will or devise absent a writing.
The Court of Appeals believed that the Legislature left open the possibility that recovery may be sought under a contract implied in law or quantum merit theory. However, this theory is not available where there exists a relationship between the parties that give rise to the presumption that services were rendered gratuitously. In the present case, petitioner and the decedent lived together for four years before the alleged agreement was even raised, the relationship included sexual relations and gifts and petitioner did not have relations with other men from the time she met the decedent until his death. Thus, a special relationship between the parties existed and the claim was properly dismissed.
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