Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  December 23, 2008                                                                 Clifford W. Taylor,
                                                                                             Chief Justice

  136532                                                                           Michael F. Cavanagh
                                                                                   Elizabeth A. Weaver
                                                                                          Marilyn Kelly
                                                                                     Maura D. Corrigan
                                                                                   Robert P. Young, Jr.
  _________________________________________                                        Stephen J. Markman,
                                                                                                  Justices
  In re Estate of CATHERINE B. STANOWSKI.
  _________________________________________
  JOHN W. STANOWSKI, Personal Representative
  of the Estate of CATHERINE B. STANOWSKI,
                 Petitioner-Appellant,
  v                                                      SC: 136532
                                                         COA: 273718
                                                         Wayne Probate Court:
                                                         1991-866724-DE
  ALVIN STANOWSKI, LILLIAN MAMO and
  PATRICIA PATTERSON, Special Fiduciary,
             Respondents-Appellees.
  _________________________________________/

        On order of the Court, the application for leave to appeal the February 21, 2008
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

        MARKMAN, J. (concurring).

          Although I agree that a denial of leave to appeal is appropriate, the existence of
  what appears to be a written acknowledgment by Lillian Mamo that the value of the Judd
  Road property would be deducted from her share of the estate compels me to address the
  trial court’s application of MCL 700.2608.

         The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., went
  into effect on April 1, 2000. MCL 700.8101(1). EPIC applies not only to all governing
  instruments executed by decedents who die after that date, but also to all proceedings
  currently pending in court or commenced after that date. MCL 700.8101(2)(a) and (b).
  Because this action was pending on April 1, 2000, EPIC was applicable and it was not
  error for the trial court to apply MCL 700.2608
                                                                                                                2

      Under MCL 700.2608(1)(c):

                       Property a testator gave in his or her lifetime to a person
               is treated as a satisfaction of a devise in whole or in part only if
               any of the following are true:

                                                        ***

                       (c) the devisee acknowledges in writing that the gift is
               in satisfaction of the devise or that its value is to be deducted
               from the value of the devise.

        Thus, in light of the written acknowledgment, it would appear that the trial court
erred by concluding that the value of the Judd Road property was not to be deducted from
Lillian’s devise. However, this is not petitioner’s argument. Instead, he argues that EPIC
is not applicable. Indeed, if we were to agree with petitioner, this Court could grant him
no relief. Before EPIC, MCL 700.139 governed this issue and it provided:

                      Property which a testator gave in his lifetime to a
               devisee shall be treated as a satisfaction of the devise in whole
               or in part, if the will provides for deduction of the lifetime gift.
               [Emphasis added.]

        The will in this case had no such provision, and an advancement could not be
proven in any way other than “where the testator’s will contains a provision to that
effect.” In re Hall Estate, 180 Mich App 389, 393 (1989). Under this precedent,
Lillian’s written acknowledgment is of no moment and the result would remain the same.
Moreover, even though EPIC is applicable, the trial court was permitted to apply the prior
law “in the interest of justice.” MCL 700.8101(2)(b). Where a determination that the
Judd Road property was an advancement would not only completely disinherit Lillian,
but result in her having to make a significant repayment to her mother’s estate, I do not
believe that the trial court abused its discretion by concluding that such an application
was clearly “in the interests of justice.” Therefore, I believe that the trial court’s
misapplication of MCL 700.2608 was harmless and accordingly concur in the decision to
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 23, 2008                   _________________________________________
       s1217                                                                  Clerk
