Every month I summarize the most important probate cases in Michigan. Now I publish my summaries as a service to colleagues and friends. I hope you find these summaries useful and I am always interested in hearing thoughts and opinions on these cases. PROBATE LAW CASE SUMMARY

BY: Alan A. May Alan May is a shareholder who is sought after for his experience in guardianships, conservatorships, trusts, wills, forensic probate issues and probate. He has written, published and lectured extensively on these topics. He was selected for inclusion in the 2007-2012 issues of Michigan Super Lawyers magazine featuring the top 5% of attorneys in Michigan and has been called by courts as an expert witness on issues of fees and by both plaintiffs and defendants as an expert witness in the area of probate and trust law. Mr. May maintains an “AV” peer review rating with Martindale-Hubbell Law Directory, the highest peer review rating for attorneys and he is listed in the area of Probate Law among Martindale-Hubbell’s Preeminent Lawyers. He has also been selected by his peers for inclusion in The Best Lawyers in America® 2013 in the fields of Trusts and Estates as well as Litigation – Trusts & Estates (Copyright 2012 by Woodward/White, Inc., of SC). He has been included in the Best Lawyers listing since 2011. He is a member of the Society of American Research (SABR). For those interested in viewing previous Probate Law Case Summaries, go online to: http://www.kempklein.com/probate-summaries.php

DT: June 27, 2013 RE: In re Estate of Eleanor Shehin State Public Administrator v Chris E. Kelel STATE OF MICHIGAN COURT OF APPEALS

BASEBALL STATS and LORE: ’s 11 straight wins are evocative of other great pitching winning streaks. Johnny Allen holds the record for consecutive wins at the beginning of a season – 15 in 1937. He had lost his mitt and borrowed a team mate’s mitt to start the season. As baseball players are known to be quite superstitious, he continued to use the borrowed mitt, for each of his 15 wins. After his 15th win a clubhouse attendant found his mitt, and sure enough he lost the 16th game; finishing the season with 15 – 1. He had a mid-year streak of 12 in 1938.

201 West Big Beaver, Suite 600, Troy, Michigan 48084 | Phone: 248.528.1111 | Fax: 248.528.5129 | www.kempklein.com In re Estate of Eleanor Shehin State Public Administrator v Chris E. Kelel STATE OF MICHIGAN COURT OF APPEALS Case –continued–

In 1936 the great finished the 1936 season with 16 straight wins and started the 1937 season with eight (8) straight wins. That is “sort of” 24 straight. Hubbell’s fellow Giant, Rube Marquard, holds the single season record for consecutive wins at 19. Under today’s rules it would have been 20. Rube relieved in the top of the ninth inning and his predecessor had left two men on base. The two men on base scored on an error and even though the Giants had gone into the ninth inning with a 2 – 1 lead, the Giants went into the bottom of the ninth with the score 3 to 2. The Giant’s went on to win 4 to 3 and, under today’s rules, Rube would have received credit for the victory. In 1912 the he had replaced received the credit.

REVIEW OF CASE: Reference Files: Lost Will Holographic Will Proof of Will Contract to Make a Will

Although I do not like this Decision, I cannot help but say, however, that it was logically consistent. The proven facts were that decedent wrote out a holographic Will in the presence of one, Nancy Gardella. The Will was dated and signed (the location of dating and signing is no longer germane under the present code). A witness read and signed the Will. Testator gave it to witness and the Will was lost by the witness. The witness was the aunt of one of the three (3) beneficiaries. The State Public Administrator argued that the oral testimony of one witness should not be sufficient to sustain a lost holographic Will. The Probate Court admitted the Will to probate on the basis of the oral testimony of one witness, Gardella. She testified as to the above, and the court determined that testimony to be clear and convincing evidence. There does not appear to be any difference between a lost holographic and a lost non- holographic Will. The court cited City of Flint v Stockdale’s Estate, 157 Mich 593, (1909) case, in support of allowing oral testimony. The Lower Court judge, in Stockdale, had charged the jury that the oral testimony was subject to a higher scrutiny. This was overruled by the Supreme Court. If oral testimony is not subject to higher scrutiny, then oral testimony must be admissible. The court also cited In re Flury Estate, 218 Mich 211. In deciding that the evidence in that matter was insufficient to admit that Will, the court did recognize that it was supported by oral testimony; therefore, oral testimony must be admissible. The instant Court of Appeals did not cite, but could have, MCL 700.3406 “maybe proven by other evidence”. Evidence, as we all know, includes testimony. The “interest” of the aunt did not bar her as a witness. There was no mention of what would have happened had she been a beneficiary.

2 In re Estate of Eleanor Shehin State Public Administrator v Chris E. Kelel STATE OF MICHIGAN COURT OF APPEALS Case –continued–

The presumption of revocation, when the Testator loses his Will, did not apply because the testimony was, in the opinion of the court, clear and convincing that the Will was not in the possession of the Testator. The State Public Administrator argued that since oral testimony could not be used to prove a contract to make a Will that, therefore, you cannot have oral testimony to prove a Will. The flaw with this reasoning is expressio unius est exclusio alterius. The oral testimony bar is only in one section of the code. If all of the above is correct, why don’t I like this case? It opens the door to fraud – one witness’ testimony on the issue of whether there was a Will, who lost it and what the terms were. It forces an opponent to prove a negative. Proof of a negative requires the “smallest scintilla of evidence”. This, in my opinion, is not what is meant by the terms “clear and convincing evidence.”

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