Case Summary: In re BLANCHARD ESTATE; BLANCHARD v. BLANCHARD, Docket No. 13205 (Mich. Ct. App. Nov. 28, 1972)

Factual and Procedural Background

The decedent, Fred B. Blanchard, executed the will at issue in 1952. He married Virginia W. Blanchard in 1949, divorced in 1960 with a property settlement, then remarried Virginia in 1963 and they lived together until his death in 1970. Virginia W. Blanchard petitioned for probate of the 1952 will. Defendants Kenneth D. Blanchard, Jean M. Yost, and Shirley Komer contested probate on the ground that the will had been revoked by implication due to the divorce and property settlement. The probate court denied the petition for probate on October 13, 1971. The circuit court affirmed that denial. The Michigan Court of Appeals, on appeal, affirmed the lower courts' rulings. Costs were awarded to the defendants. Leave to appeal to the Michigan Supreme Court was granted (389 Mich. 773).

Legal Issues Presented

Whether a prior divorce and property settlement impliedly revoked the testator's earlier will under MCLA 702.9; MSA 27.3178(79) and controlling Michigan case law.
Whether the subsequent remarriage of the testator to the former spouse affects the conclusive presumption of revocation created by Michigan precedent (i.e., whether remarriage could rebut or revive the earlier will).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lansing v. Haynes, 95 Mich. 16 (1893)	Applied the revocation-by-change-of-circumstances language of the statute to hold that divorce and a property settlement revoke a prior will by implication.	Used as foundational authority for the proposition that divorce plus property settlement constitutes a change of circumstances sufficient to imply revocation of a prior will.
Wirth v. Wirth, 149 Mich. 687, 688-689 (1907)	Established a conclusive presumption that divorce and property settlement operate ipso facto to revoke a will, not merely a rebuttable presumption.	Relied upon as the controlling statement that divorce and settlement revoke the will upon entry of the decree, and that subsequent acts by the testator cannot revive the instrument without formal will formalities.
In re McGraw's Estate, 233 Mich. 440 (1926)	Reaffirmed the conclusive presumption that a divorce revokes a prior will as a reasonable inference in most cases.	Cited to show continued Supreme Court adherence to the Wirth rule and to support the Court of Appeals' conclusion that it was bound by those precedents.

Court's Reasoning and Analysis

The court began with the undisputed facts (timing of marriage, will, divorce/property settlement, remarriage, and decedent's death). It identified the statutory provision at issue, MCLA 702.9; MSA 27.3178(79), which provides that a will is not revoked except by certain formal acts, "excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator."

The court traced the line of Michigan authority applying that statutory language to divorce and property settlements. It described Lansing v. Haynes (1893) as the first application of the statute to hold that divorce and a property settlement constitute a change of circumstances revoking a prior will. It explained that Wirth v. Wirth (1907) converted that inference into a conclusive presumption—holding that divorce and settlement ipso facto revoke the will when the decree is signed and that subsequent acts cannot revive the will without testamentary formalities. The opinion noted that In re McGraw's Estate (1926) reaffirmed that conclusive presumption on the ground that it is a reasonable inference in most cases.

Applying this precedent to the present facts, the court concluded that it was bound by the Supreme Court's rule that divorce and property settlement conclusively revoke a prior will. The court acknowledged that the subsequent remarriage of the parties might, as a matter of policy or fairness, offer a basis to revisit the rule and to allow inquiry into the parties' property arrangements and the testator's intent after remarriage. The court stated it would remand for evidentiary hearing to explore such facts if it were not constrained by the established Supreme Court authority. Because the Court of Appeals considered itself bound by Wirth and its reaffirmation in McGraw, it declined to carve out an exception based on remarriage and affirmed the denial of probate.

Holding and Implications

Holding: The judgment denying probate of the 1952 will was affirmed by the Court of Appeals; costs were awarded to the defendants.

Implications: The court applied and reaffirmed the established Michigan rule that a divorce and property settlement ipso facto revoke a prior will by implication of law, and stated it was bound by that rule despite circumstances (here, the testator's remarriage to the former spouse) that might suggest reconsideration. The opinion did not modify or create new precedent; it upheld the existing line of Supreme Court decisions and the statutory interpretation underlying them. The direct consequence is that probate of the challenged will was denied and the prior decisions of the probate and circuit courts were affirmed.

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In re BLANCHARD ESTATE BLANCHARD v. BLANCHARD

LESINSKI, C.J.

Plaintiff attempted to probate the will of Fred B. Blanchard. Defendants contested the probate, claiming the will had been revoked by implication. On October 13, 1971, the probate court denied plaintiff's petition for probate of the will. The circuit court affirmed. Plaintiff appeals upon leave granted.

The facts are not in dispute. The decedent and plaintiff were married in 1949. Decedent executed the will in question in 1952. He and plaintiff obtained a divorce and property settlement in 1960. They remarried in 1963, and lived together until his death in 1970.

Defendants opposed probate of the will on the theory that the divorce and property settlement had impliedly revoked the will. Their theory is based on the Michigan revocation statute and on a series of Michigan Supreme Court cases. MCLA 702.9; MSA 27.3178(79) states in relevant part:

"No will nor any part thereof shall be revoked, unless by burning, * * * excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator."

This statutory language was first applied to a divorce and property settlement situation in Lansing v. Haynes, 95 Mich. 16 (1893). There it was held that a divorce and property settlement comprised such a "change of circumstances" as to revoke the prior will by implication of law. This rule solidified into a conclusive presumption in Wirth v. Wirth, 149 Mich. 687, 688-689 (1907), where the Court said:

"This offer of testimony presents the question whether the change in the relations of the parties to the settlement of their property affairs raises a rebuttable presumption of revocation or whether such divorce and settlement operates ipso facto to revoke the will. We think the circuit judge correctly held that the divorce and settlement revoked the will, and that the revocation was made and completed when the decree was signed, and that no subsequent act of the testator not accompanied by the solemnities requisite for the making of a valid will could revive the instrument in question and make it a valid will."

The Supreme Court reaffirmed the conclusive nature of the presumption of revocation by divorce in In re McGraw's Estate, 233 Mich. 440 (1926). The Court created this conclusive presumption on the grounds that it was reasonable to infer in most cases that the testator would have intended a revocation. In Lansing, 20-21, it said:

"By the decree of divorce in this case, the parties became as strangers to each other, and neither owed to the other any obligation or duty thereafter. There was, therefore, a complete change in these relations, within the language above quoted from Chancellor Kent. It is not, in my judgment, the natural presumption that, after the testator had settled with her, had conveyed to her a good share of his property, and they, by agreement, had terminated all their property, as well as their marital relations, the will executed nearly 10 years before should remain in force, and operate upon his death as a conveyance of the remainder of his property to her, to the exclusion of his heirs. If this were so, then it would follow that, if he had children living, or a dependent mother or other dependent relatives, or a second wife without issue, his duties and obligations towards them must be set aside, in favor of a most harsh and unjust rule. * * * To hold the will unrevoked under these circumstances would be repugnant to that common sense and reason upon which law is based. I do not think the common law is so unbending as to lead to this result. * * * The natural presumption arising from these changed relations is the reasonable one, and the one which in law implies a revocation. The question is not to be controlled by a possible presumption, but by the reasonable presumption. The possibility, therefore, that the deceased might have desired that the remainder of his property should go to his divorced wife, cannot be considered in determining the question of an implied revocation in this case. Such disposition of his property would be unusual, and contrary to common experience."

This rule, in the case at bar, gives rise to what might be a harsh result. Here the testator had resumed the obligations of marriage. A reasonable presumption is that he would intend to provide for his wife in his will. The record does not disclose what property arrangements were made between the decedent and his wife upon the remarriage of the parties. In the least, the validity of the reasoning in Lansing and the rule of Wirth are challenged by the added fact of remarriage in our case.

Were we not bound by the rule of Wirth as reaffirmed by the Supreme Court in In re McGraw's Estate, we would remand for an evidentiary hearing to determine the relationship of the decedent and his wife as to their property upon remarriage. We would allow such other evidence as would bear upon disclosing the intent of the decedent in relation to his will made prior to the divorce.

While the circumstances of this case may make it appear appropriate to carve out an exception to the court imposed rule upon the statute, this Court is powerless to do so.

Affirmed. Costs to defendants.

All concurred.

IN RE BLANCHARD ESTATE