                          STATE OF MICHIGAN

                           COURT OF APPEALS



In re ESTATE OF LINDA L. DALPE.


ANTHONY PASSARELLI,                                                UNPUBLISHED
                                                                   October 9, 2018
               Petitioner-Appellant,

v                                                                  No. 339899
                                                                   Alcona Probate Court
KATHY J. MANNERS, Personal Representative of                       LC No. 16-005565-DE
the ESTATE OF LINDA L. DALPE,

               Respondent-Appellee.


Before: MURPHY, P.J., and SAWYER and SWARTZLE, JJ.

PER CURIAM.

       Petitioner, Anthony Passarelli, appeals by right the probate court’s order denying his
motion to admit an unsigned will as the will of decedent, Linda Dalpe. We affirm.

                                       I. BACKGROUND

        Alan Kew, now deceased, was involved in a romantic relationship with Dalpe. Kew had
two stepchildren, petitioner and Marie Passarelli, from a prior marriage. Dalpe was not related to
petitioner. Respondent, Kathy Manners, is Dalpe’s sister. Under the terms of the unsigned will,
Kew’s stepchildren would receive Dalpe’s estate, which consisted primarily of assets left to her
by Kew. Dalpe did not have another will and, if the unsigned will was not admitted, her estate
would pass through intestate succession.

        Petitioner filed a motion to accept the unsigned will and the probate court held a hearing
on the motion. At this hearing, petitioner presented evidence from William S. Smigelski, an
attorney with whom Kew and Dalpe met prior to their deaths. According to Smigelski, Kew and
Dalpe were considering marriage, and Kew wanted to update his will. After they discussed their
concerns and desires with Smigelski, he and his partner created a complex estate plan for Kew.
Kew was dissatisfied with the plan’s complexity, however, and wanted more time to consider it.
As an interim measure, Smigelski created a simple will that provided for all of Kew’s assets to
go to Dalpe in the event of his death; if Dalpe predeceased Kew, his assets would go to his two
stepchildren, petitioner and Marie. Kew died on October 26, 2015, shortly after meeting with

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Smigelski and before making a decision on the complex estate plan. As a result, his estate went
to Dalpe.

        Smigelski testified that, after Kew’s death, he met twice with Dalpe to discuss both her
estate plan and the processing of Kew’s estate. According to Smigelski, Dalpe expressed her
desire for her entire estate to be given to the stepchildren to share. Smigelski testified that
Dalpe’s wishes were so similar to Kew’s that Smigelski took a copy of Kew’s will and made
handwritten notes on it to indicate the specific changes Dalpe wanted to make. If one of the
stepchildren predeceased the other, that share was to pass to the other survivor. If neither
beneficiary survived her, the estate was to go to Jennifer Memerski, Kew’s step-granddaughter.
Petitioner was to be her personal representative with Marie as the alternative. Finally, there was
to be a durable power of attorney and patient advocate given to respondent.

        Following the second meeting, Smigelski drafted a will, durable power of attorney, and
patient advocate. Smigelski, however, did not see Dalpe again after the second meeting.
Although Smigelski testified that Dalpe never contacted him after this meeting to express that
she did not want the stepchildren to be beneficiaries of her estate, he also stated that Dalpe never
saw the completed draft will and may not have seen the rough draft he created at the meetings.
Dalpe died approximately one month after the second meeting.

       Respondent disputed Smigelski’s testimony about his various meetings with Dalpe.
Respondent testified that she was at these meetings and that there was no discussion about
Dalpe’s estate or her will. Respondent also did not recall Smigelski creating a rough draft with
handwritten notes at the meetings. According to respondent, these meetings involved only the
processing of Kew’s estate; there were no discussions about Dalpe’s estate.

        Furthermore, respondent testified that Dalpe’s relationship with the stepchildren had
soured near the end of Dalpe’s life and that Dalpe would never have made them beneficiaries of
her estate. She described an argument between Dalpe and the stepchildren that had occurred in
Dalpe’s home sometime after Kew’s death. There was paperwork on the kitchen table, and the
stepchildren may have been pressuring Dalpe into signing specific documents. Respondent was
unsure what these documents were. Dalpe stated that she would not sign anything, threw the
stepchildren out of her home, and had no further contact with them. Respondent testified that
Dalpe “absolutely was not going to leave anything to” the stepchildren. According to
respondent, Dalpe told her this on three separate occasions.

        Respondent further testified that she and Dalpe both visited Smigelski’s office on one
more occasion after the second meeting and met with Smigelski’s secretary concerning
paperwork for Kew’s estate. According to respondent, this secretary never informed them about
the draft will or the need for Dalpe to review and sign it; in fact, they never even addressed or
discussed it. Moreover, respondent testified that she and Dalpe visited Alpena, which
Smigelski’s office was evidently near, approximately 10 times after the second meeting, yet
Dalpe never directed respondent to take her to Smigelski’s office so that she could sign the
formal will.

        After hearing the evidence, the probate court denied petitioner’s motion, finding that
petitioner had failed to show by clear and convincing evidence that Dalpe intended for the draft

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will to constitute her actual will. Although the probate court credited Smigelski’s testimony
concerning the two meetings, the probate court concluded that Dalpe’s statements to respondent
and the fact that Dalpe never signed the draft document created a serious question on whether the
draft was actually reflective of Dalpe’s testamentary intent. The probate court subsequently
denied petitioner’s motion for reconsideration.

       This appeal followed.

                                         II. ANALYSIS

        We review the probate court’s factual findings for clear error. In re Bennett Estate, 255
Mich App 545, 549; 662 NW2d 772 (2003). “A finding is clearly erroneous when a reviewing
court is left with a definite and firm conviction that a mistake has been made, even if there is
evidence to support the finding.” Id.

        Under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., to be
valid, a will generally must be (a) in writing; (b) signed by the testator or by someone at the
testator’s direction; and (c) signed by at least two witnesses within a reasonable time after
witnessing the testator either sign the will, acknowledge the will’s signature, or acknowledge the
will itself. MCL 700.2502(1)(a)-(c). There is an exception, however, listed in MCL 700.2503,
which provides, in pertinent part:

       Although a document or writing added upon a document was not executed in
       compliance with section 2502, the document or writing is treated as if it had been
       executed in compliance with that section if the proponent of the document or
       writing establishes by clear and convincing evidence that the decedent intended
       the document or writing to constitute any of the following:

       (a) The decedent’s will.

This provision “permits the probate court to admit a will without a signature to probate if the
proponent of the document in question establishes, by clear and convincing evidence, that the
decedent intended the document to constitute his or her will.” In re Attia Estate, 317 Mich App
705, 713; 895 NW2d 564 (2016). Evidence is clear and convincing if it “produces in the mind of
the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established.” In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995) (cleaned up). This
evidence must be “so clear, direct and weighty and convincing as to enable the factfinder to
come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Id.
(cleaned up).

       Respondent disputed what occurred at the meetings between Smigelski and Dalpe.
According to respondent, these meetings involved processing Kew’s estate; Dalpe’s estate was
never discussed. The probate court found that Smigelski did discuss the will with Dalpe at the
meetings and did make the handwritten notes. The probate court indicated that it did not doubt
Smigelski’s veracity, given that he was a longstanding and respected member of the legal
community. The probate court found, however, that there were “clearly misunderstandings” by
both Dalpe and respondent. Respondent had testified that neither she nor her sister was “very

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savvy,” and the probate court had “the impression from [respondent’s] testimony that she
probably wasn’t really clear as to what all went on at” the meetings. This finding was well
supported by the evidence. Respondent testified that she did not know what exactly an estate
plan was. She also testified that at the meetings “some other words that I didn’t know” were
used that she figured would be clarified later on if needed. Respondent also testified that Dalpe
had only a ninth-grade education and was not well-versed “on a lot of stuff.” She further
testified that there was simply “no way” that Dalpe could have contacted an attorney and “asked
for stuff to be done.”

        Moreover, respondent presented other testimony that cast doubt on Dalpe’s intentions. It
was undisputed that Dalpe had an argument with the stepchildren and explicitly stated to
respondent that she would not sign anything. Dalpe threw the stepchildren out of her house and
had no further contact with them. Respondent also testified that Dalpe “absolutely was not going
to leave anything to” the stepchildren and that Dalpe told her this on at least three occasions.
This testimony could be (and was) credited by the probate court as an exception to the hearsay
rule under MRE 803(3). See Aetna Life Ins Co v Brooks, 96 Mich App 310, 313; 292 NW2d 532
(1980).

         Furthermore, it was undisputed that respondent and Dalpe were very close. Respondent
testified that her relationship with Dalpe had been very good. The two were always together and
knew quite a bit about each other. After Kew’s death, Dalpe and respondent lived together, and
respondent also took care of Dalpe’s transportation needs.

        Additionally, both respondent and Smigelski testified that Dalpe never saw the completed
draft, and Smigelski testified that he believed Dalpe had not even seen the initial rough draft.
Dalpe never reviewed the completed draft with Smigelski to confirm that it represented her full
and complete testamentary intent. In fact, there was doubt over whether she even knew that it
existed.

       Respondent also testified that she did not recall discussing the draft will with Smigelski
when Dalpe was hospitalized. She stated that she had no reason to have discussed such a topic
with him given that she believed Dalpe would make a full recovery. Finally, respondent testified
that she did not know who the alleged beneficiary Jennifer Memerski was, that she did not
believe Dalpe had ever had contact with Memerski, and that she did not believe her sister would
sign over assets to a beneficiary she did not know. Because no testimony was elicited from
Smigelski concerning this, the probate court found it to be “another question thrown into the
mix.” Respondent also believed that Dalpe would want respondent to be her personal
representative, not petitioner.

        We must give deference to the “the special opportunity of the trial court to judge the
credibility of those witnesses who appeared before it.” Detroit Bank & Trust Co v Grout, 95
Mich App 253, 268; 289 NW2d 898 (1980) (cleaned up). In light of the conflicting testimony,
we conclude that the probate court did not clearly err by determining that petitioner failed to
establish, “by clear and convincing evidence, that the decedent intended the document to
constitute . . . her will.” In re Attia Estate, 317 Mich App at 713. The evidence was not so
strong as to establish a firm conviction that the unsigned draft will was evidence of Dalpe’s
testamentary intent. In re Martin, 450 Mich at 227.

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Affirmed.



                  /s/ William B. Murphy
                  /s/ David H. Sawyer
                  /s/ Brock A. Swartzle




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