Order Michigan Supreme Court
Lansing, Michigan
December 15, 2006 Clifford W. Taylor,
Chief Justice
126758 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
IN RE VANCONETT, ESTATE. Robert P. Young, Jr.
Stephen J. Markman,
_________________________________________/ Justices
FLOYD RAU, Personal Representative of the
Estate of HERBERT LEE VANCONETT,
Deceased; JOYCE ANN FLORIP; KAREN JEAN
PETERSON; and SANDRA LEE PARACHOS,
Plaintiffs-Appellants,
v SC: 126758
COA: 247516
Saginaw PC: 01-111943-DE
ELIZABETH M. LEIDLEIN and
MARIANNE DURUSSEL,
Defendants-Appellees.
_________________________________________/
On order of the Court, leave to appeal having been granted and the case having
been briefed and argued by counsel, the order of January 13, 2006 which granted leave to
appeal is VACATED and leave to appeal is DENIED, because we are no longer
persuaded that the questions presented should be reviewed by this Court.
MARKMAN, J. concurs and states as follows:
I concur in the Court’s order denying leave to appeal. At issue is whether the
decedent, Herbert VanConnett, entered into a contract with his wife to make a mutual
will and, if he did, whether that contract is specifically enforceable.
The Court of Appeals correctly concluded, in my judgment, that each of these
wills shows an intention to enter into a contract for a mutual will and that each contains
the material provisions of that contract. Such a contract becomes irrevocable by the
survivor and can be specifically enforced by the beneficiaries. Schondelmayer v
Schondelmayer, 320 Mich 565, 570 (1948). Having determined that a contract existed,
the Court of Appeals should then have held that the contract was specifically enforceable
and remanded to the probate court for enforcement. Instead, the Court of Appeals held
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that the will was revocable and remanded to the probate court for further factual
development and consideration of whether revocation breached the contract.
Notwithstanding, the evidence indicates that the assets at issue are no longer part
of the decedent’s estate and, therefore, there is nothing to distribute to the intended
beneficiaries. Because the remand ordered by the Court of Appeals will not detrimentally
affect the rights of the intended beneficiaries, I would deny leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 15, 2006 _________________________________________
p1212 Clerk