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In re Estate of Attia

Court of Appeals of Michigan

October 10, 2016

In re Estate of SABRY MOHAMED ATTIA.
v.
MERVAT HASSAN, Appellant. MAYSSA ATTIA, Personal Representative, and MONA NOUR EL DEEN, Appellees,

         Wayne Probate Court LC No. 14-801279-DE

          Before: Jansen, P.J., and Murphy and Riordan, JJ.

          Jansen, P.J.

         Appellant appeals as of right the probate court orders dismissing her petition to determine whether an unsigned will may be admitted to probate and granting summary disposition in favor of appellee Mayssa Attia (appellee Mayssa). We reverse and remand for further proceedings consistent with this opinion.

         The sole issue presented on appeal is whether a decedent must sign a will in order for that will to be admitted to probate. The decedent in the instant case died on September 11, 2014. The decedent had four children: appellant, appellee Mayssa, appellee Mona El Deen, and Madiha Fields (formerly known as Madiha Attia). The decedent executed a will on July 8, 1986, and executed codicils to the will on February 17, 2009, and February 1, 2013. The July 1986 will provided that appellant and El Deen were "happily married" and that the decedent would "not designate anything for them because they are not in need." The first codicil provided for additional devises to El Deen and stated, "I recognize that I have not designated any specific gift for my other daughter, Mervat A. Hassan, because I believe that she has been adequately provided for and is not in need." Appellee Mayssa was appointed personal representative of the decedent's estate following his death, and she filed a petition to probate the July 1986 will and subsequent codicils.

         Appellant filed an objection to the probate of the July 1986 will and subsequent codicils, as well as a petition to admit an unsigned will to probate. Appellant contended that the decedent changed his estate plan during a meeting with his attorney, Barbara Rende, before his death, and he directed Rende to draft a new will. According to appellant, "others were present with attorney Rende, and/or Sabry M. Attia simultaneously told others of his intention to execute a new Last Will and Testament and the provisions." Appellant contended that Rende drafted a new will and arranged for the execution of the will on September 11, 2014, the same day the decedent died. The probate court decided that it would first determine the legal issue whether an unsigned will may be admitted to probate. Appellant subsequently filed a petition to determine whether an undated, unsigned will may be admitted to probate, contending that, although MCL 700.2502 requires that a will be signed, MCL 700.2503 provides an exception to the signature requirement if the proponent of the will establishes by clear and convincing evidence that the decedent intended for the document to constitute his will. Appellee Mayssa filed a motion for summary disposition, contending that the July 1986 will and corresponding codicils should be admitted to probate and that the court should dismiss the petition to admit the unsigned September 2014 will to probate. The court held a hearing and decided the issue as follows:

Well the Michigan statute is based on the Uniform Probate Code, which relates to fixing harmless error and our statute is no different.
If the [L]egislature wanted to permit an unsigned Will to be permitted [sic], then I think the statute would say, although a document was not executed, or was not executed in compliance with the statute then that would have been more appropriate language.
I think that the language in 2503, relates to a document which is executed but is flawed in its execution.
The only case that we have, which is cited in the Federer's notes is the case out of, I believe it was Australia, where a husband and wife signed Wills, but they signed the wrong Wills and Australia accepted that as a [sic] execution of some sort, but faulty execution.
So, I think it's a bright line rule in Michigan and I certainly welcome the Court of Appeals to address it. So I am going to grant Summary Disposition.

         The probate court subsequently entered orders denying the petition to determine whether an unsigned will may be admitted to probate and granting summary disposition in favor of appellee Mayssa. The court entered an order formally admitting the July 1986 will and corresponding codicils to probate. The probate court also denied a motion that appellant filed for an order waiving the attorney-client privilege and for production of Rende's attorney files, notes, correspondence, drafts, and all materials regarding the decedent.

         Appellant argues that the probate court erred by concluding that an unsigned will cannot be admitted to probate as a matter of law. We agree.

         We review de novo a probate court's decision regarding a motion for summary disposition. In re Casey Estate, 306 Mich.App. 252, 256; 856 N.W.2d 556 (2014). "A motion under MCR 2.116(C)(8) tests the legal sufficiency of the claim as pleaded, and all factual allegations and reasonable inferences supporting the claim are taken as ...


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