            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                            COURT OF APPEALS



In re ESTATE OF HUBERT JENKINS.


RICHARD NADEAU, Personal Representative of                          UNPUBLISHED
the ESTATE OF JENKINS,                                              February 12, 2019

               Appellee,

v                                                                   No. 341005
                                                                    Wayne Probate Court
TIMOTHY JENKINS,                                                    LC No. 16-814205-DE

               Appellant.


Before: MURRAY, C.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

     Appellant appeals as of right the probate court’s order granting appellee’s motion for
summary disposition pursuant to MCR 2.116(C)(10). We affirm.

                                       I. BACKGROUND

       Hubert Jenkins (decedent) died a widower on January 4, 2016, leaving behind no
children. Appellee, as personal representative of decedent’s estate, filed a will that decedent had
executed in July 2014 (7/14 will) with the Wayne Probate Court. The 7/14 will gave decedent’s
boat and 10% of decedent’s residual estate to appellee. The remaining 90% of decedent’s estate
was given to decedent’s nephew Jimmy Ray Jenkins (Jimmy Ray) and appellant’s brother.
Appellant filed a petition requesting supervision of the administration of the estate and to set
aside decedent’s 7/14 will, contending that decedent lacked the requisite testamentary mental
capacity at the time that the 7/14 will was executed. Appellant asked the court to accept
decedent’s will that was signed in April 2013 that left 40% of decedent’s estate to appellant and
nothing to Jimmy Ray.

       After discovery, appellee moved for summary disposition under MCR 2.116(C)(10),
contending that no genuine issue of material fact existed regarding decedent’s mental state in
July 2014 because appellant had not produced any evidence which raised a question of whether
decedent was competent to properly execute his will. In support of that contention, appellee
offered, among other evidence, the affidavit of decedent’s attorney, David Grunow. Grunow
stated that he drafted decedent’s 7/14 will at decedent’s express direction, and Grunow did not
have any contact with any of decedent’s family members regarding decedent’s estate. At the
time that the 7/14 will was executed, Grunow believed that decedent was mentally alert and had
full capacity to execute any legal documents. Appellee also offered medical records of decedent
from physicians who observed decedent in 2015 and documented that decedent was “alert and
oriented” during the visits and that decedent’s “judgment and thought content” were normal.

        In response, appellant contended that the evidence showed a genuine issue of material
fact regarding decedent’s mental state. In support of that contention, appellant offered his own
deposition testimony and the affidavits of George Marx, decedent’s neighbor, and Elsie Jenkins
(Elsie), decedent’s sister-in-law and the mother of appellant and Jimmy Ray. Appellant asserted
his belief that decedent had been increasingly paranoid in the last couple years of his life. Marx
stated that decedent had begun to do a “lot of weird and unusual things” during the last two years
of decedent’s life. Elsie claimed that decedent’s “confusion and paranoia” had led decedent to
mistakenly change decedent’s will to eliminate appellant as a beneficiary.

       The trial court granted appellee’s motion for summary disposition. The trial court
concluded that appellant did not produce sufficient evidence to establish a genuine issue of
material fact regarding decedent’s mental capacity to properly execute his 7/14 will.

                                II. SUMMARY DISPOSITION

       Appellant contends that his testimony and the affidavits of Marx and Elsie established a
genuine issue of material fact regarding whether decedent had sufficient mental capacity to
execute his 7/14 will. We disagree.

        This Court reviews de novo a probate court’s decision granting summary disposition. In
re Casey Estate, 306 Mich App 252, 256; 856 NW2d 556 (2014). When reviewing a trial court’s
decision on a motion for summary disposition, this Court must “consider the documentary
evidence presented to the trial court ‘in the light most favorable to the nonmoving party.’ ”
DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 539; 620 NW2d 836
(2001). A motion for summary disposition under MCR 2.116(C)(10) is properly granted when
“there is no genuine issue regarding any material fact and the moving party is entitled to
judgment as a matter of law.” Greene v AP Prod, Ltd, 475 Mich 502, 507; 717 NW2d 855
(2006). “A genuine issue of material fact exists when the record, giving the benefit of reasonable
doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” In
re Lett Estate, 314 Mich App 587, 595; 887 NW2d 807 (2016), quoting West v General Motors
Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

       MCL 700.2501(2) provides that a testator has sufficient mental capacity to properly
execute a will if four 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.

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       (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.

        An individual’s mental capacity to properly execute a will is presumed. In re Mardigian
Estate, 312 Mich App 553, 565; 879 NW2d 313 (2015). A person contesting a will “has the
burden of establishing lack of testamentary intent or capacity . . . .” MCL 700.3407(1)(c). The
issue of whether a testator has the requisite testamentary capacity “is judged as of the time of the
execution of the instrument, and not before or after[.]” Mardigian, 312 Mich App at 565,
quoting In re Powers’ Estate, 375 Mich 150, 152; 134 NW2d 148 (1965).

        A testator has sufficient mental capacity to execute a will when he or she “goes to an
attorney and directs the drafting of a will disposing of his property in a fashion that indicates that
he knows the property of which he is possessed and the objects of his bounty, and has sufficient
reason for disposing of the property in the fashion he does under the will[.]” In re Anderson’s
Estate, 353 Mich 169, 175; 91 NW2d 356 (1958). See also In re Ver Vaecke’s Estate, 223 Mich
419, 425; 194 NW 135 (1923) (describing that, in those circumstances, it is “a waste of time” to
question the testator’s mental capacity). Testimony of others regarding the testator’s mental
state, even if based on personal observations, is opinion evidence and is not entitled to any
weight when that opinion testimony is confronted with uncontroverted testimony that the testator
alone directed his will and formed its provisions. In re Hallitt’s Estate, 324 Mich 654, 663-664;
37 NW2d 662 (1949), quoting In re Aylward’s Estate, 243 Mich 9, 16; 219 NW 697 (1928).

        Furthermore, proof of old age, physical weakness, or forgetfulness is insufficient to
establish a lack of mental capacity. In re Sprenger’s Estate, 337 Mich 514, 521; 60 NW2d 436
(1953); In re Briner’s Estate, 275 Mich 396, 402; 266 NW 394 (1936). “A testator may be
suffering physical ills and some degree of mental disease and still execute a valid will, unless the
provisions thereof are affected thereby.” In re Ferguson’s Estate, 239 Mich 616, 627; 215 NW
51 (1927). Additionally, neither a “lack of wisdom in the disposition of the property nor the
fairness of the provisions of the will [should] influence the court in a determination of mental
competency.” Sprenger’s Estate, 337 Mich at 521.

        The opinion evidence offered by appellant did not create a material question of fact in
this case. It is of great significance that there was evidence from medical records produced by
licensed health care professionals that was contemporaneous to the execution of the 7/14 will
indicating the testator was oriented and appropriate. Despite early allegations, no evidence was
offered that Jimmy Ray exerted undue influence on his long estranged uncle. The court received
evidence that decedent went to Grunow and personally directed the disposition of his property
under his 7/14 will and that no other family persons were present or involved in that process.
The evidence offered by appellant, taken by itself, merely shows that decedent was sometimes
confused or paranoid that people would steal his property or trespass on his land or that decedent
may have mistakenly changed his will. Marx stated that decedent had done a “lot of weird and
unusual things” and that decedent had incorrectly threatened Marx and complained that Marx

                                                 -3-
was trespassing on decedent’s property. Elsie asserted that decedent had suffered periods of
confusion and paranoia for several years prior to his death that led decedent to mistakenly
change his will. Appellant stated that decedent became paranoid in 2013 about people stealing
decedent’s property. However, Grunow claimed that decedent alone expressly dictated the
contents of his 7/14 will. At that time, decedent was mentally alert and knew both the nature of
his estate and the members of his family. Grunow also stated that he did not have any contact
with decedent’s family regarding decedent’s estate. Grunow’s “uncontroverted testimony” that
decedent alone directed the provisions of his will directly contradicts the opinion evidence
offered by appellant; thus, as a matter of law, that opinion evidence “is entitled to be given no
weight whatever.” Hallitt’s Estate, 324 Mich at 664.

        Even when viewing the evidence offered by appellant in the light most favorable to
appellant, that evidence does not overcome the presumption that decedent had the mental
capacity to properly execute his 7/14 will. The evidence does not materially affect one of the
four requirements of MCL 750.2501(2). Elsie’s opinion that decedent mistakenly changed his
will and appellant’s opinion that decedent was confused and paranoid carry “no weight” legally
in light of Grunow’s affidavit. Because that opinion evidence carries no weight, a reasonable
person cannot infer from the evidence that decedent was incapable of knowing the members of
his family, the extent of his property, or the effect of executing a will. Rather, the evidence is
merely proof of old age or forgetfulness, and it does not, by law, establish a lack of mental
capacity. Sprenger’s Estate, 337 Mich at 521. Furthermore, the medical evidence offered by
appellee establishes that decedent was “alert and oriented” and that his “judgment and thought
content” were normal at the time he executed the 7/14 will. This evidence supports a finding that
decedent had the requisite mental capacity. Therefore, even when viewing the evidence in the
light most favorable to appellant, appellant has not shown a genuine issue of material fact
because the evidence demonstrates that decedent still possessed the necessary mental capacity to
execute his 7/14 will even though he suffered from old age or forgetfulness.

       Affirmed.

                                                            /s/ Christopher M. Murray
                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Michael J. Riordan




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