By Alan Polack
In 2008, Frederick Leete III (Fred) and Barbara R. Leete (Barb), husband and wife, lived in Brownsburg, Indiana.
This was a second marriage for both and each had children from prior marriages.
On October 29, 1996, Fred executed a Quit Claim Deed creating a tenancy by the entireties with Barb for real property located in Mackinac City.
On February 28, 2008, Fred left his vehicle running in the garage around 1:40 p.m.
Barb’s daughter found Barb dead and Fred unconscious in the house.
Fred was hospitalized and died on March 3, 2008 at 9:10 p.m.
Barb’s Death Certificate listed her death as February 28, 2008, time unknown.
Both died from carbon monoxide poisoning.
Barb died intestate but Fred left a will dated September 20, 1974.
The will gave the Mackinac property to Barb “if she shall survive me for a period of more than 30 days.”
Fred’s children were contingent beneficiaries. The will was admitted to probate and Fred Leete IV (Fred IV) was appointed personal representative. Fred IV inventoried the
Mackinac property.
Cynthia K. Sherman, Barb’s daughter and personal representative of Barb’s estate, sought a half interest in the Mackinac property because Fred did not survive Barb by more than 120 hours.
Based on MCL 700.2702(3), which provides “...if it is not established by clear and convincing evidence that one of two co-owners with rights of survivorship survived the other
co-owner with rights of survivorship by 120 hours, half of the co-owned property passes as if one had survived by 120 hours and half as if the other had survived by 120 hours.”
So Cynthia wanted half of the property and Fred IV wanted all of it, alleging that Barb died on February 27. February 2008 was a leap year.
Adding February 29, and assuming that Barb died at 12:00 a.m. on February 28, the longest that Fred survived Barb was 117 hours and ten minutes.
Fred IV never proved his allegation that Barb died on February 27.
Fred IV argued that MCL 700.2702(3) did not apply to Fred’s deed because it was executed four years prior to the enactment of the Estate and Protected Individuals Code (EPIC).
In other words, sole title to the Mackinac property passed to Fred at Barb’s death.
Both parties filed motions for summary disposition.
The probate court denied Fred IV’s motion but ordered that Cynthia’s motion would be granted unless Fred IV proved that Barb died on February 27, 2008 within 90 days.
Fred IV failed to submit proofs within the 90 day period and the court granted summary disposition to Cynthia ordering that Barb’s estate was entitled to half of the Mackinac property.
The Court of Appeals (In re Estate of Frederick Deeland Leete III, No. 293979, writes close to three pages on the procedure to enter orders.
If you find this issue of interest, read this case.
After disposing of this issue, the court took up the applicability of EPIC to Fred’s deed. EPIC took effect on April 1, 2000.
It clearly authorizes jurisdiction over a decedent’s property located in Michigan even though the decedent is a resident of another state.
Fred IV had filed an affidavit with the probate court, listing the Mackinac property as Fred’s domicile.
The court rejected Fred IV’s argument that Indiana law applied.
Furthermore, the location of Fred’s property in Michigan invoked the probate court’s jurisdiction.
Finally, Fred’s will did not state that Indiana law applied.
The court next discussed whether EPIC or the Revised Probate Code (RPC), in effect on the date that Fred executed his deed, was controlling.
Fred IV asserted that EPIC did not apply because it became effective four years after the date of the deed.
The court held that EPIC did apply to “governing instruments” of anyone who died after April, 2000 unless such application impaired an “accrued right” and that Fred IV had no
accrued right under either Fred’s will or deed.
This finding is crucial because the 120 hour rule did not apply to deeds under the RPC.
It was EPIC, for the first time, that applied the rule to co-ownership deeds.
Fred IV next argued that the 120 hour rule was not applicable because Fred’s will embodied a “contrary intention.”
The court rejected this argument because neither the will nor the deed explicitly recognized that EPIC did not apply or that other rules apply, such as those in the RPC or Indiana’s Probate Code.
This is not surprising since both instruments predated EPIC (Practice Note: should this issue be discussed when preparing instruments for spouses of a second marriage or non-spouses?)
In the end, all of Fred IV’s arguments failed.
The probate court divided the Mackinac property equally between the two spouses’ estates.
Since the property was originally Fred’s, maybe he should have formed a trust which would have clarified his intent regarding disposition of the property instead of executing a Quit Claim Deed.
Who knows?
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Alan F. Polack specializes in elder and probate law and practices out of Shelby Township. He is a former president of the Macomb County Probate Bar Association.
