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Binding Non-participating Interested Persons Under a Mediation Settlement Agreement in Probate Litigation


By David Skidmore

On February 9, 2023, the Michigan Court of Appeals rendered its decision in In re Estate of Terry Broemer, Docket No 360571, 2023 Westlaw 1871496 (Mich Ct App Feb 9 2023) (unpublished). The decision is significant not only because it involved an unsigned will, but also because it addressed how to make a mediation settlement agreement binding on interested persons who declined to participate in the mediation.

At Terry’s death, he was single and had no descendants. Initially, Terry’s stepdaughter opened an intestate estate, giving notice to one known heir. Subsequently, Terry’s unsigned will and trust were discovered. Laura, a beneficiary of the unsigned trust, petitioned to admit the unsigned will to probate as a writing intended as a will under MCL 700.2503. No objections were filed, and the probate court granted the petition. The problem was that Terry had a number of heirs who did not receive notice of the proceeding. Some of the non-noticed heirs retained counsel and objected to admission of the unsigned will to probate. The probate court sent the contested proceeding to mediation.

Prior to mediation, the attorney for the personal representative of the estate sent a notice to those heirs who were not represented by counsel as required by Michigan Court Rule 5.120, advising them that each of them had the right to participate in the mediation, but that those who opted not to participate would be bound by the actions of the personal representative. Virginia was an unrepresented heir who opted not to participate in mediation. The parties who did participate in mediation reached a settlement agreement, which provided for a payment to the heirs, in exchange for the heirs withdrawing their objection to admission of the unsigned will to probate. All parties received notice of the hearing to approve the settlement agreement. Virginia did not object to the settlement agreement or attend the hearing, and the probate court approved the settlement. Virginia did not file any timely appeal of that order.

Subsequently, an acquaintance of Virginia’s filed an objection to the settlement on behalf of Virginia. The acquaintance engaged in oral argument at the hearing, which Virginia did not attend. The probate court found that the acquaintance was engaging in the unauthorized practice of law, and that Virginia’s objection to the settlement was time-barred. On appeal, the Michigan Court of Appeals affirmed.

Two aspects of this case are worthy of note. First, MCL 700.2503 permits a writing intended as a will, which does not satisfy the formalities of a formal will, to be admitted to probate. Perhaps the most important requisite of a formal will is that it be signed by the testator. Here, the unsigned will was admitted to probate (first, without objection; subsequently, pursuant to the parties’ settlement) without the testator’s signature. The proofs “showed that around September 3, 2019, [decedent] indicated that he approved of the final estate planning documents and that he died two weeks later, before he had the opportunity to meet with the attorney and execute the documents.” 2023 WL 1871496 at *1, fn 3. This case therefore stands for the proposition that an unsigned will, which the testator approved but failed to sign due to his intervening death, may be admitted to probate as a writing intended as a will under MCL 700.2503.

Second, this case illustrates the significance of the fiduciary providing the notice required by Michigan Court Rule 5.120 to unrepresented interested persons in probate litigation. That rule provides in relevant part: “The fiduciary must inform the interested persons that they may file a petition to intervene in the matter and that failure to intervene shall result in their being bound by the actions of the fiduciary.” Here, the probate court and appellate court interpreted this rule to mean that an interested person who opted not to participate in mediation, after receiving the MCR 5.120 notice, was bound by the settlement agreed to by the personal representative at mediation. That is a significant power for the personal representative.

David L.J.M. Skidmore is a partner in Warner Norcross + Judd LLP, where he has practiced for 25 years. Based in Grand Rapids, he has a statewide probate litigation practice, serving as both an advocate and a mediator. He is a Fellow in the American College of Trust and Estate Counsel; a former Chair of the Probate and Estate Planning Section of the State Bar of Michigan; and recognized by The Best Lawyers in America for probate litigation.

If you desire a consultation regarding a disputed Probate Court matter, contact David Skidmore at 616.752.2491 or