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WILLS/TRUSTS 19: Intent of the testator is to be carried out as nearly as possible.

This dispute concerns the distribution of property and other assets pursuant to the last will and testament.

The testator died on July 5, 2013 and was survived by his wife and his adult daughter who was born of his prior marriage.

On July 11, 2014, pursuant to MCL 700.1302(d) and MCL 700.3415, the wife asked the probate court for instructions as to the meaning and effect of the language in subparagraph A of the second section of the will.

The second section of the will, dealing with the testator’s intended bequest of his assets, provides as follows:

SECOND: I give and devise all my property of whatever kind and wherever found as follows:

A. I give and devise my residence and property located in Big Rapids, Michigan to my wife if she survives me.

B. All the rest, residue and remainder of my property of whatever kind and wherever found I give and devise one-half (1/2) to my daughter and one-half (1/2) to my wife. In the event either predecease me, then her share shall pass to the survivor.

In her request for interpretation by the probate court, the wife indicated that she interpreted the phrase my residence and property in subparagraph A to devise everything at the address, including all of the personal property in the residence, garage, pole barn, stable, and elsewhere on the real property, to the wife; and thus, it was not a part of the residue.

The daughter argued that the words my residence and property refers only to the residence, meaning the house, and the personal property in the house, further arguing that the rest of the real property located at the address (i.e., the farm land of approximately 43 acres ) was not included in this provision.

The probate court rejected the daughter’s argument and interpretation and held that: (1) the house or residence could not be devised without the land on which it was situated, (2) there is no patent or latent ambiguity in the language at issue in the will, (3) because there is no ambiguity in the will language, extrinsic evidence is not needed to glean the testator’s intent, (4) the words my residence include the house and the land of approximately 43 acres on which the house sits, including fixtures and outbuildings, and (5) the -3- words “and property” refer to all of the personal property located on the 43-acre parcel.

A fundamental precept which governs the judicial review of wills is that the intent of the testator is to be carried out as nearly as possible.

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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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