Court Transcript Isn’t a Will or Oral Trust

By Doug Chalgian on February 12, 2020

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In an unpublished opinion, the Court of Appeals concludes that despite the fact that Malrey Beetris Collier testified in open court that her two children would share equally in her estate when she died, the child that got cut out of her will cannot use those statements as a basis for setting aside her will or otherwise altering the disposition of her estate.

The offended child argued creatively, but unsuccessfully, that either the statements her mother made at the hearing should be the basis for an oral trust or that the transcript of the hearing should itself be admitted as a document intended to be a will under MCL 700.2503.

To read In Re Estate of Malrey Beetris Collier, click here

Oral Trust

The COA’s explanation as to why testimony of a witness regarding her testamentary intentions (which testimony was non-responsive to the question asked) does not meet the requirements of an oral trust, seems strained.   The COA oddly relies almost entirely on a 1965 Michigan Supreme Court decision, while failing to even cite MCL 700.7407 which was adopted in 2010 and which requires clear and convincing evidence of an oral trust.

That said, I think the result is the same.

MCL 700.2503

I have written several times about the growing use of MCL 700.2503 to admit documents which fail to meet the technical requirements of a formal will or holographic will. You will recall that in In Re Estate of Sabry Mohamed Attia, the COA said that an unsigned draft of a will could potentially be admitted as a will, if other proofs were satisfied. And in In Re Estate of Duane Francis Horton II, the COA upheld a trial court’s application of the statute to admit a digital message saved on a smartphone as the will of a decedent. Here, however, the COA would not stretch the statute so far as to conclude that the transcript of an oral statement (even an oral statement made in open court) could satisfy the requirements of the statute and thereby be treated as a will. [Click on case names to read those cases.]

Again, I think the result is correct.


Perhaps Ms. Collier was being intentionally dishonest when testifying in Court. More likely she was mistaken about her estate plan. Hard to say. But the case presents an interesting set of facts, and it’s fun to speculate what her disappointed child might have been able to do to avoid a result that seems to be inconsistent with her mother’s intentions.

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mm By: Doug Chalgian
Doug Chalgian

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