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PROBATE 45: The court held that the probate court did not err by granting summary disposition for Plaintiff, or by denying Defendant’s request for an extension of the discovery period, adjournment of mediation, and issuance of subpoenas and by dismi

This case arises out of competing petitions for probate. On November 19, 2018, Defendant initiated this case by filing a petition for probate, attaching Decedent’s death certificate and purported last will and testament, dated March 9, 2007, and requesting he be appointed personal representative as nominated in that will. On November 30, 2018, Plaintiff also filed a petition for probate, attaching Decedent’s death certificate and purported last will and testament, dated July 12, 2018, and seeking appointment as personal representative. On February 6, 2019, the probate court entered a stipulated scheduling order granting the parties until March 22, 2019, to engage in discovery, requiring the parties to attend mediation on  that date or after, providing an April 23, 2019 deadline to file dispositive motions for which no responses would be accepted, and scheduling a settlement conference for May 7, 2019. On April 17, 2019, Plaintiff filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and MCR 2.116(C)(10) on Defendant’s claims of undue influence and lack of testamentary capacity, and on April 29, 2019, Plaintiff filed an objection to the petition, contending that Defendant, to Plaintiff’s knowledge, issued two subpoenas six days before the March 22, 2019 discovery deadline, and did not attempt to engage in any other discovery. In his brief in support of the petition, Defendant asserted that his counsel was unable to comply with the probate court’s discovery deadline as provided in the stipulated order entered on February 6, 2019, because he was unsuccessful in securing timely information about Decedent’s state of mind when she executed the 2018 Will approximately four months before her death. On June 19, 2019, a hearing was held on Plaintiff’s motion for summary disposition and the petition, at which the probate court concluded that there was no basis to reject the 2018 Will, determined that it was valid, and appointed Plaintiff as personal representative. In its opinion, the probate court added that, “[u]nder the circumstances, [Defendant’s] request for additional discovery appears to be a ‘fishing expedition’ rather than a request based on more than mere conjecture or speculation.” On July 31, 2019, the probate court entered an order granting Plaintiff’s motion for summary disposition, denying Defendant’s request for an extension of the discovery period, adjournment of mediation, and issuance of subpoenas, and dismissing Defendant’s petition for probate. This appeal followed.


On appeal, Defendant argues that the probate court abused its discretion in denying Defendant’s motion to extend discovery and granting Plaintiff’s motion for summary disposition. This Court reviews for an abuse of discretion a trial court’s decision regarding a motion to extend discovery.


Defendant argues that summary disposition was inappropriate, and his motion to extend discovery should have been granted, because for reasons beyond Defendant’s control, Defendant’s counsel was unsuccessful in securing timely information regarding Decedent’s state of mind when she executed the 2018 Will thereby making it impossible to comply with the probate court’s discovery deadline. In order to invoke the probate court’s discretion to grant an adjournment, a party must demonstrate good cause. MCR 2.503(B)(1). [C]ases upholding a denial [of a motion to adjourn] have always involved some combination of numerous past continuances, failure of the movant to exercise due diligence, and lack of any injustice to the movant. Where a motion to adjourn is requested in order to complete discovery, the inquiry focuses on whether the movant has shown an adequate explanation for the failure to complete discovery and whether the failure was due to a lack of diligence in preparation.” Although this is not a case where Defendant had requested “numerous past continuances,” Defendant has not shown an adequate explanation for his counsel’s failure to complete discovery. Defendant argues that his counsel failed to complete discovery on time because Hospice refused to cooperate with his subpoena for Decedent’s medical records “unless it was signed by a judge.” Although Defendant attempts to explain that his counsel’s failure to complete discovery was because of Hospice, the record is devoid of any attempts by Defendant’s counsel to secure a signed subpoena from the probate court for Decedent’s medical records from Hospice. Consequently, Defendant has not shown an adequate explanation for his counsel’s failure to complete discovery necessitating an extension or adjournment. Further, other than the subpoenas, the record neither shows that Defendant’s counsel issued discovery requests, or presented any affidavits to support Defendant’s claims or the need for additional discovery, nor has Defendant’s counsel tried to depose, or even contact, any potential witnesses. In fact, Defendant’s counsel did not file the petition to amend or extend discovery until April 1, 2019, approximately 10 days after the close of discovery. Therefore, the probate court did not abuse its discretion in declining Defendant’s request to extend discovery.

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