Background
Robert Hughes died and his sister, Randa Hughes, filed for informal probate in September 2024, representing that the decedent died intestate. She alleged that his only child, Steven Lang, was not an heir because Lang had been adopted by someone other than a stepparent. The probate register appointed Randa personal representative and issued letters of authority.
Shortly thereafter, Thomas Dunn — who claimed to have been entrusted with safekeeping the decedent’s original will — filed a motion for testate probate through attorney David Gilbert. Dunn sought to admit a printed copy of a purported will, which he said was an electronic copy recovered from a computer after the original was destroyed in a house fire. The purported will would have distributed the estate to the decedent’s biological son (60%) and the Veterans of Foreign Wars Post 7303 (40%), with Dunn serving as personal representative.
At the October 2024 hearing, Dunn testified that he believed attorney Gilbert had drafted the will. Gilbert directly contradicted this, stating on the record — as an officer of the court — that the document was not his work. Dunn presented no other witnesses and no other evidence. The probate court denied the motion, declined to admit the copy to probate, and ordered the estate to proceed as intestate. Dunn appealed.
The Court’s Holding
The Michigan Court of Appeals affirmed. The court first rejected Dunn’s argument that the purported will copy should have been automatically admitted under MCR 5.132(A) because Randa did not object to it as an exhibit. The court held that Dunn misread the rule: MCR 5.132 governs only the use of a will copy for deposition purposes, not a standalone basis for admitting a copy to probate over the proponent’s evidentiary burden.
The court then upheld the probate court’s application of the common-law presumption of revocation. Under established Michigan law, when a will known to have been in the testator’s custody cannot be found at death, it is presumed the testator destroyed it with the intent to revoke it. The burden falls on the proponent of any copy to rebut that presumption. The appellate court found no clear error in the probate court’s conclusion that Dunn failed to meet that burden, given the ambiguities in his testimony, his inability to specify where the electronic copy was located, and the direct contradiction from his own counsel regarding the will’s authorship.
Applying deferential review to the probate court’s credibility findings, the Court of Appeals held it was not left with a firm and definite conviction that the lower court was mistaken. The denial of Dunn’s motion was affirmed in full.
Key Takeaways
- Under Michigan’s common-law presumption of revocation, a will known to have been in the testator’s custody that cannot be found at death is presumed destroyed with intent to revoke — and the proponent of a copy bears the burden of rebutting that presumption with credible evidence.
- MCR 5.132 does not operate as an automatic admission rule for copied wills; it permits copies to be used for deposition purposes only, and a proponent cannot bypass probate court scrutiny simply because the opposing party fails to object to the copy as an exhibit.
- Contradictions between the proponent’s testimony and his own attorney’s on-the-record statements go directly to credibility, and appellate courts give broad deference to a probate court’s credibility determinations.
- Insufficient evidence — here, a single witness whose testimony was internally contradicted and uncorroborated — will not overcome the presumption of revocation, leaving the estate to pass intestate.
Why It Matters
This unpublished decision reinforces the strength of Michigan’s presumption of revocation in lost-will disputes and underscores the heavy evidentiary lift facing proponents of copy wills. Practitioners seeking to admit a copy of a lost will must present consistent, corroborated testimony; a single witness whose account is contradicted — even by his own attorney — will not suffice.
The case also serves as a cautionary tale about procedural missteps: an attorney whose bar license goes inactive mid-appeal, a misreading of MCR 5.132 that the court squarely rejected, and contradictory accounts of the will’s very origins all combined to doom the claim. For estate planning attorneys, the opinion highlights the importance of maintaining clear provenance records for original wills and ensuring clients understand the revocation risks of leaving original documents with third parties.