20241114_C369865_46_369865.Opn.Pdf ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re ESTATE OF POPE.
TROY J. MILLS, UNPUBLISHED
November 14, 2024
Appellant, 11:30 AM
v No. 369865
Lapeer Probate Court
LISA J. FINK, LC No. 20-041145-DE
Appellee.
Before: BORRELLO, P.J., and N. P. HOOD and YOUNG, JJ.
PER CURIAM.
In this action involving the estate of Dolores Maxine Pope (the decedent), appellant, Troy
J. Mills, appeals as of right the trial court’s order granting summary disposition to appellee, Lisa
J. Fink,1 and formally admitting the decedent’s April 17, 2009 will to probate. We affirm.
I. BACKGROUND
This case arises out of the death of the decedent on July 24, 2023, and the decedent’s
disinheritance of Mills. On August 18, 2023, Fink filed an application as the daughter, heir, and
devisee of decedent, requesting: (1) informal probate of the decedent’s will and (2) appointment
of Fink to be the personal representative. Fink attached the will to the application for admission
to probate. Fink also filed a testimony-to-identify-heirs form, indicating Fink was the decedent’s
daughter, the decedent did not leave a surviving spouse, the decedent had two children (Fink and
1
Fink moved for summary disposition under MCR 2.116(C)(8) (failure to state a claim) and
(C)(10) (no genuine issue of material fact). It is unclear under which subsection the trial court
granted the motion; however, because the trial court went beyond the pleadings to decide the
motion, the proper standard of review is under MCR 2.116(C)(10).
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Mills), the decedent left a will, and all devisees are heirs. The will was admitted to informal
probate and Fink was appointed personal representative.
The will was signed by the decedent and two witnesses, Mary Ann Garfi and Dawn R.
Kelly. The will was drafted by attorney Curt Ollikainen. The decedent’s will stated, in pertinent
part:
ARTICLE I
FAMILY
My Spouse is JOSEPH F. POPE, JR. . . . My children who are not from this
marriage are [Fink] and [Mills]. My stepchild is TALISHA BERNIER. In
addition, I have another stepchild named KATRINA POPE who has predeceased
me who has descendants.
I deliberately make no provision in my will for my stepchild TALISHA
BERNIER, my child [Mills], or the descendants of my deceased stepchild
KATRINA POPE. I also make no provision in my will for any descendants of
TALISHA BERNIER or [Mills] for reasons personal to me. . . .
* * *
ARTICLE III
PERSONAL REPRESENTATIVE
I appoint my Spouse as my Personal Representative. If my Spouse is
unwilling or unable to act, then I name [Fink] to act as my Personal
Representative. . . .
* * *
ARTICLE V
DISTRIBUTION OF RESIDUE
Section 1. I direct that the residue of my estate be given to my Spouse, if
my Spouse survives me.
Section 2. If my Spouse fails to survive me, I direct that the residue of my
estate be given to my child, [Fink]. . . .
* * *
I, DOLORES M. POPE, the Testatrix sign my name to this instrument on
April 17, 2009. I certify or declare under penalty of perjury under the law of the
state of Michigan that the statements in this document are true. I declare that this
document is my will; that I sign it willingly or willingly direct another to sign for
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me; that I execute it as my voluntary act for the purpose expressed in this will; and
that I am eighteen years of age or older, of sound mind, and under no constraint or
undue influence.
* * *
We, Mary Ann Garfi and Dawn R. Kelly, the witnesses, sign our names to
this document and certify or declare under penalty of perjury under the law of the
state of Michigan that all of the following statements are true; the individual signing
the document as the Testatrix executes the document as her will, signs it willingly
or willingly directs another to sign for her, and executes it as her voluntary act for
the purposes expressed in this will; each of us, in the presence and hearing of
DOLORES M. POPE signs this will as witness to the Testatrix’s signing; and, to
the best of our knowledge, the Testatrix is eighteen years of age or older, of sound
mind, and under no constraint or undue influence.
Mills filed a petition to set aside the informal probate of the will, alleging, “the instrument
was not executed in accordance with legal formalities for a valid will . . . , specifically
MCL 700.2502(1), and is not the will of Decedent.” Mills argued the will was not a self-proving
will under MCL 700.2504. Fink objected to the petition, asserting the will was validly executed
and met the statutory requirements. The trial court entered an order opening discovery “limited to
issues surrounding the Will such as drafting, execution and knowledge of signing.”
During discovery, Garfi, Kelly, and Ollikainen were deposed. Ollikainen testified that he
drafted the will for the decedent after interviewing the decedent and her spouse by telephone and
later meeting them at his office to sign documents. Ollikainen did not have “any [independent]
recollection” of his meeting with the decedent and her spouse, which was “13 or 14 years ago,”
but reviewed his notes to recall the events surrounding the drafting of the decedent’s will.
Ollikainen did not recall if he was in the room with the decedent when she signed documents.
Ollikainen testified remembering that “[the decedent] had two children, a boy and a girl, and that
[the decedent] wanted to disinherit the boy and leave everything to the daughter.” Ollikainen’s
notes included a “reference that [he] found them to be mentally competent.”
Ollikainen explained that in drafting the will, he used a “document assembly program,” or
an “internal program,” and he “customized” the document to include the name of the disinherited
child. The program “did not install page numbers.” Ollikainen recognized the witness signatures
on the will as “both individuals that [he] worked with” but that he had no independent recollection
of the decedent signing. Ollikainen explained that his drafting procedure did not include the
witnesses initialing each page of the document. Ollikainen found nothing unusual about the will
and testified that the distribution scheme in the will “matche[d]” his notes “from that time in terms
of the distribution scheme that the [] [decedent] wanted.”
Garfi, who worked as Ollikainen’s paralegal at the time the will was drafted as well as one
of the signing witnesses, was also deposed. She did not recall meeting the decedent or signing the
will, but recognized her signature as a witness on the decedent’s will. Garfi reviewed the
decedent’s will and explained:
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[I]t’s our form of will. This is a standard of what we prepared or the attorneys
prepared. It looks just like our wills. The wording in it is what we used in our
wills. So, I would say yes, that [those other pages attached to the signature page]
go with the signature page.
Kelly also worked for Ollikainen at the time the will was drafted. While she did not recall
meeting the decedent or signing the will, Kelly recognized her signature as a witness on the
decedent’s will. She testified that there was no procedure to “initial the other pages” and did not
recall if attorneys numbered the pages of wills.
At the close of discovery, Fink moved for summary disposition, under MCR 2.116(C)(8)
(failure to state a claim) and (C)(10) (no genuine issue of material fact), arguing that the decedent’s
will met the legal formalities for a valid will in Michigan under MCL 700.2502(1) and that Mills
failed to state a claim under MCR 2.116(C)(8). Fink requested that the will be admitted to probate.
Mills replied to Fink’s motion for summary disposition, arguing the will was not self-proving
under MCL 700.2504, Fink did not meet the burden of proving due execution of the will, and there
remained genuine issues of material fact regarding the chain of custody of the will. Mills also
moved separately for summary disposition, under MCR 2.116(C)(8), arguing the instrument
offered to probate by Fink was not a self-proving will. Fink replied, stating the issue was
previously ruled on by the trial court and now moot.
The trial court held a hearing on both Mills’ and Fink’s competing motions for summary
disposition. Following the hearing, the trial court entered an order granting Mills’ motion for
summary disposition, finding that the decedent’s will was “not a self-proved will” under
MCL 700.2504. However, the trial court also granted Fink’s motion for summary disposition,
deciding that decedent’s will, “dated April 17, 2009, is a properly executed will” under
MCL 700.2502(1) and “formally admitted” the will to probate. This appeal followed.
II. ANALYSIS
A. STANDARDS OF REVIEW
Fink moved for summary disposition under MCR 2.116(C)(8) and (C)(10). It is unclear
under which subsection the trial court granted the motion. However, “where a motion for summary
disposition is brought under both MCR 2.116(C)(8) and (C)(10), but the parties and the trial court
relied on matters outside the pleadings . . . MCR 2.116(C)(10) is the appropriate basis for review.”
Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 457; 750 NW2d 615 (2008). In this
case, the parties and the trial court relied on evidence outside the pleadings, namely the deposition
testimony from Ollikainen, Kelly, and Garfi. Specifically, the trial court “accepted the testimony
submitted” and, “based on the testimony of the witnesses,” was “satisfied that this is a valid [w]ill.”
MCR 2.116(C)(10) provides the basis for this Court’s review.
“We review de novo a probate court’s decision regarding a motion for summary
disposition.” In re Attia Estate, 317 Mich App 705, 709; 895 NW2d 564 (2016). “A de-novo
review means [this Court] review[s] the legal issue independently, without deference to the lower
court.” Bowman v Walker, 340 Mich App 420, 425; 986 NW2d 419 (2022) (quotation marks and
citation omitted).
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A motion under MCR 2.116(C)(10) . . . tests the factual sufficiency of a
claim. When considering such a motion, a trial court must consider all evidence
submitted by the parties in the light most favorable to the party opposing the
motion. A motion under MCR 2.116(C)(10) may only be granted when there is no
genuine issue of material fact. A genuine issue of material fact exists when the
record leaves open an issue upon which reasonable minds might differ. [El-Khalil
v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019) (quotation
marks and citations omitted).]
“If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of
those facts, whether summary disposition is proper is a question of law for the Court.” Miller
Estate v Angels’ Place, Inc, 334 Mich App 325, 330; 964 NW2d 839 (2020). “Statutory
interpretation is a question of law, which this Court also reviews de novo.” O’Neal v St John Hosp
& Med Ctr, 487 Mich 485, 493; 791 NW2d 853 (2010).
B. THE ESTATES AND PROTECTED INDIVIDUALS CODE (EPIC)
“The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., governs this
case. The provisions in EPIC are to be construed liberally and applied to promote its purposes and
policies, including ‘[t]o discover and make effective a decedent’s intent in distribution of the
decedent’s property.’” Attia Estate, 317 Mich App at 709, quoting MCL 700.1201(b).
MCL 700.2502 governs the validity of a will and states:
(1) Subject to section 1202, and except as provided in subsection (2) and in [MCL
700.2503, MCL 700.2506, and MCL 700.2513], a will is valid only if it is all of the
following:
(a) In writing.
(b) Signed by the testator or in the testator’s name by some other individual in the
testator’s conscious presence and by the testator’s direction.
(c) Signed by at least 2 individuals, each of whom signed within a reasonable time
after he or she witnessed either the signing of the will as described in subdivision
(b) or the testator’s acknowledgment of that signature or acknowledgment of the
will. [MCL 700.2502(1) (footnotes omitted).]
MCL 700.3407(1)(b) states: “A proponent of a will has the burden of establishing prima facie
proof of due execution in all cases and, if the proponent is also a petitioner, prima facie proof of
death and venue.” MCL 700.3407(1)(d) states: “A party has the ultimate burden of persuasion as
to a matter with respect to which the party has the initial burden of proof.”
C. VALIDITY OF DECEDENT’S SIGNATURE
In this appeal, Mills argues there was a genuine issue of material fact as to the validity of
the decedent’s will, including whether the decedent signed the will. According to Mills, Fink did
not prove due execution of the will, precluding the trial court from granting summary disposition
in favor of Fink. We disagree. There is no question the will was in writing, which satisfies
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MCL 700.2502(1)(a). When Fink, as personal representative, applied for informal probate, she
attached the decedent’s will to the application. The will was four pages and included several
provisions. As to MCL 700.2502(1)(b), the will included the decedent’s signature on the final
page. Immediately preceding the decedent’s signature, on the third page, the decedent certified
and declared “the statements in this document are true,” “that this document is my will; that I sign
it willingly,” “I execute it as my voluntary act,” and “I am eighteen years of age or older, of sound
mind, and under no constraint or undue influence.”
As to MCL 700.2502(1)(c), the will was signed by two individuals, Kelly and Garfi, who
witnessed the decedent sign the will. Immediately preceding the signatures of Kelly and Garfi, on
the fourth page, Kelly and Garfi certified and declared “the individual signing the document as the
Testatrix executes the document as her will, signs it willingly . . . and executes it as her voluntary
act.” Kelly and Garfi also certified and declared, “each of us, in the presence and hearing of [the
decedent] signs this will as witness to the Testatrix’s signing; and . . . Testatrix is eighteen years
of age or older, of sound mind, and under no constraint or undue influence.”
In determining no genuine issues of material fact existed, the trial court noted there was a
valid will under MCL 700.2502(1) “based on the testimony of witnesses.” The trial court noted
the “terms of the [w]ill follow in a chronological order. [The decedent] did sign it. It is dated
April 17, 2009. . . .” The trial court continued:
There is really no argument that she wasn’t competent. There’s no
argument of undue influence. The document is labeled as her Last Will and
Testament. The document is witnessed . . . by two witnesses who signed it, and
their statement, in her presence.
The record evidence supports this conclusion. Ollikainen, the drafter of the decedent’s will,
interviewed the decedent to determine her estate planning goals in 2009. As stated, Ollikainen
recalled that the decedent sought to disinherit Mills.
He explained how the decedent’s will was “customized” to include the name of the
disinherited child and that the decedent’s will was “laid out typically as a UAW will in terms of
how it was formatted, the ordering of the paragraphs. It’s nothing unusual about that, whatsoever.”
The record further included the testimony of Garfi, who explained the procedures used when
drafting a client’s will, and noted Ollikainen “always met with the client right before signing to go
over the documents. . . .” Garfi clarified, after a will was signed, it would be stapled in two places
to “a backing,” one at the top left and one at the top right of the document. Upon reviewing the
decedent’s will, Garfi noted: “[I]t’s our form of will. This is a standard of what we . . . prepared.
It looks just like our wills. The wording in it is what we used in our wills.”
Kelly’s testimony further supports the trial court’s conclusion. She explained the
procedure used for drafting wills and was familiar with the formatting of the wills, execution
requirements, and how the wills were maintained. Ollikainen recognized both witness signatures
on the decedent’s will as “both individuals that [he] worked with.” Garfi and Kelly each
recognized their respective signatures on the will.
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D. VALIDITY OF WITNESS SIGNATURES AND OTHER REQUIREMENTS
Mills argues neither Kelly or Garfi recall signing the decedent’s will, creating a question
of fact as to its validity. This argument lacks merit. “[W]e know of no rule of law which makes
the probate of a will depend upon the recollection or even the veracity of a subscribing witness.”
In re Clark Estate, 237 Mich App 387, 395; 603 NW2d 290 (1999) (quotation marks and citation
omitted). Although the witnesses did not recall meeting the decedent or signing her will, these
events took place in 2009, fifteen years ago. Kelly explained that at that time, she did “three or
four signings a day.” As the trial court noted, “[t]he Court accepts the testimony submitted and
while they don’t remember a lot of details, that is not uncommon. It’s common and acceptable
evidence and testimony for people to testify as to their common practice and procedure.” Aside
from not recalling the signing, Mills failed to set forth any evidence suggesting the will did not
meet the statutory requirements delineated above.
Mills further contends the lack of page numbers on the will casts doubt on its validity.
However, the trial court addressed this point, noting there was testimony “they didn’t use page
numbers.” The record supports the program at GM-UAW Legal Services used by Ollikainen “did
not install page numbers.” Kelly did not recall if attorneys numbered the pages of wills. Further,
contrary to Mills’s assertion, Ollikainen’s procedure did not include the witnesses initialing each
page of the document. Kelly clarified there was no procedure to “initial the other pages.” Mills
argues that because the substantive pages of the will were separate from the signature page, there
is a genuine issue of fact whether the decedent signed the will. This argument also lacks merit.
Garfi testified: “I would say yes, that [those other pages attached to the signature page] go with
the signature page.” Garfi clarified: “I don’t know if I was the one who made the copies” but they
“would be the same as the original.”
Next, Mills’ argument that an evidentiary hearing was required with at least one attesting
witnesses’ testimony to prove due execution under MCL 700.3406(1) is without merit. The trial
court addressed this issue at the motion hearing, stating:
The Court is satisfied that this is not an evidentiary hearing. It is a Summary
Disposition that . . . the witnesses to this Will[] did testify as to their common . . .
procedure, that they had notes that verified that [the decedent] did sign this in their
presence and their statement is that she . . . was of sound mind and under no . . .
constraint or undue influence and is her voluntary act.
MCL 700.3406(1) does not explicitly require an evidentiary hearing, as Mills asserts.
MCL 700.3406(1) also states: “Due execution of an attested or unattested will may be proved by
other evidence.” The trial court did not err by accepting the testimony on a motion for summary
disposition, which allows the trial court to consider evidence beyond the pleadings, such as
depositions. See MCR 2.116(G)(2). In this case, due execution was proven by the testimony of
Kelly and Garfi.
E. EVIDENCE OF FRAUD
Finally, although not included in the petition itself, Mills made arguments in the trial court
and on appeal that the decedent’s will was fraudulent. This claim lacks merit.
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MCR 2.112(B)(1) states, “[i]n allegations of fraud or mistake, the circumstances
constituting fraud or mistake must be stated with particularity.” “General allegations will not
suffice to state a fraud claim.” LaMothe v Auto Club Ins Ass’n, 214 Mich App 577, 586; 543
NW2d 42 (1995), overruled on other grounds by Covenant Med Ctr, Inc v State Farm Mut Auto
Ins Co, 500 Mich 191; 895 NW2d 490 (2017), superseded by statute as stated in Van Dyke Spinal
Rehab Ctr, PLLC v USA Underwriters, ___ Mich ___; ___ NW3d ___ (2024) (Docket No.
365848). In support of this claim, Mills offers his affidavit. Mills stated he lived with the decedent
“for almost a year prior to her death,” took care of the decedent, and maintained her property.
After the decedent’s death, Fink “stormed into the house . . . and dragged the safe across the floor
and out of the house.” Mills stated the decedent told him “prior to her death,” that Mills and Fink
“were the beneficiaries of [the decedent’s] property.” Fink told Mills “the purported will was
found in the safe which she took from the house.” The only statement that gives us pause is that
Mills believed “based on what my mother told me” that “any wills [the decedent] prepared left
things to [Fink] and I equally.” But this fails to rise to the level of particularity required under the
court rules. What did mother say prior to her death to lead Fink to believe that? Further, the
decedent’s will was made in 2009, and the decedent passed away in 2023. Even if she allegedly
made statements as asserted by Mills, there is no evidence that the will was rescinded or that
another (more recent) will was made.
Because Mills failed to sufficiently plead any allegation of fraud, his affidavit is
insufficient to create a genuine issue of material fact as to the validity of the will.
III. CONCLUSION
The trial court did not erroneously resolve factual disputes when deciding Fink’s motion
for summary disposition, and did not err by concluding a genuine issue of material fact did not
exist as to the validity of the will, which was admitted to probate. Mills is not entitled to reversal
of the trial court’s order because the motion was properly granted under MCR 2.116(C)(10).
Affirmed.
/s/ Stephen L. Borrello
/s/ Noah P. Hood
/s/ Adrienne N. Young
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