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WILLS/TRUST 28: The test for assessing an individual’s competency as to a conveyance of property.


JV died in June 2013. A bench trial took place during which W and other heirs argued that JV was mentally incompetent, in part, due to Parkinson’s disease, at the time of signing the 2012 will and POA and the 2013 deed. March 14, 2013, JV signed a ladybird deed granting his home, upon his death, to his cousin. They also argued that LVJ abused the POA by diverting funds and making various errors in settling JV’s estate.

Competency and Related Issues

W argued that JV was incompetent when signing the 2012 will and POA and the 2013 deed. We disagree. MCL 700.2501(2) provides: An individual has sufficient mental capacity to make a will if all of the following requirements are met:

(a) The individual has the ability to understand that he or she is providing for the disposition of his or her property after death.

(b) The individual has the ability to know the nature and extent of his or her property.

(c) The individual knows the natural objects of his or her bounty.

(d) The individual has the ability to understand in a reasonable manner the general nature and effect of his or her act in signing the will.

The test for assessing an individual’s competency as to a conveyance of property is whether at the time he executed the deeds in question he had sufficient mental capacity to understand the business in which he was engaged, to know and understand the extent and value of his property, and how he wanted to dispose of it, and to keep these facts in his mind long enough to plan and effect the conveyances in question without prompting and interference from others.


The treating physician testified that advanced Parkinson’s disease was progressive and often causes cognitive impairment, but that impairment can be intermittent throughout the day. In addition, the attorney who assisted with the signings testified that before the signings he talked with JV to see if he understood what was happening and stated that he had no information and observed no signs indicating that JV was not competent.

Probate Court

The probate court greatly emphasized the intermittent nature of JV’s confusion and concluded that the attorney was in the best position to assess JV’s legal competence at the time of signing. The court upheld the 2012 will and power of attorney (POA) and 2013 deed executed by the deceased.

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MICHIGAN REAL ESTATE 95: Property owners did not place a condition upon the delivery of the deed; rather, they delivered the deed to themselves.

When the delivery of a deed is contingent upon the happening of some future event, title to the subject property will not transfer to the grantee until the event has occurred. However, in this case A and J did not place a condition upon the delivery of the deed; rather, they delivered the deed to themselves, then deposited the deed with their attorney with the instruction to record the deed only upon the happening of a future event, thereby placing a condition only upon the recording of the deed.

MICHIGAN PROBATE 57: Brother granted permanent guardianship of siblings.

At a multiday hearing to address the extension of the guardianship, the eldest children, the mother’s relatives and friends, and school personnel testified regarding the mother’s care of the children, appellant’s treatment of and interaction with the children, and the eldest siblings’ role in aiding the mother to raise the children.

FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

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