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STATE OF MICHIGAN
COURT OF APPEALS


In re Estate of EMERY C. KAUFMANN, Deceased. ___________________________________________ SHIRLEY J. KIRBY and JACK L. LINTNER, personal representative, Petitioners-Appellants, v No. 188359 Branch Probate Court LC No. 92-029426 UNPUBLISHED April 18, 1997

ROGER KAUFMANN, Respondent-Appellee.

Before: Reilly, P.J., and Wahls and N.O. Holowka,* J. PER CURIAM. Petitioners appeal as of right an order dismissing the petition to determine title to real property and for an accounting of profits from real property and for an accounting of assets from February 15, 1990 to January 30, 1991, and an order granting the petition to amend and denying relief requested. We affirm. On February 15, 1990, decedent, a Michigan resident, executed a power of attorney in Indiana nominating his son, the respondent, as his attorney-in-fact. On January 29, 1991, a day before decedent's death, respondent transferred decedent's real estate to himself. Petitioners first argue that the probate court erred in finding that petitioners had not sustained their burden of proof of showing that decedent was incompetent when he executed the power of attorney nominating respondent as his attorney-in-fact. A probate court's findings of fact may not be set aside unless clearly erroneous. MCR 2.613(C); In re Erickson Estate, 202 Mich App 329, 331; 508 NW2d 181 (1993). "A finding is said to be clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made." Id.

* Circuit judge, sitting on the Court of Appeals by assignment. -1

Here, even though the evidence presented indicates that decedent was confused on the day the power of attorney at issue was executed, petitioners failed to demonstrate that decedent did not have the capacity to execute such a document. Petitioners must demonstrate that decedent was of unsound mind when the power of attorney was executed and that because of the unsoundness he had no reasonable understanding of the nature or terms of the contract. Erickson, supra at 332. "Where there is evidence pro and con, much weight should be given to the conclusion reached by the probate judge, who had the opportunity of seeing and hearing the witnesses." Id. at 333. This Court is not left with a definite and firm conviction that the probate court's finding was erroneous. Petitioners next argue that the probate court erred in finding that the power of attorney was validly executed. In Indiana, to be valid, a power of attorney must be signed by the principal in the presence of a notary public. Ind Code Ann

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