Preview:

STATE OF MICHIGAN COURT OF APPEALS

In re Estate of ILENE JENNINGS.

CRAIG WRIGHT, Personal Representative of the Estate of ILENE JENNINGS, Appellee, and ROSE LABARGE, a/k/a ROSE YARRINGTON, Appellant, v JOHN JENNINGS, Appellee.

UNPUBLISHED July 28, 2011

No. 298063 Genesee Probate Court LC No. 10-187640-DE

Before: BORRELLO, P.J., and METER and SHAPIRO, JJ. PER CURIAM. Appellant Rose LaBarge appeals as of right from a probate court order admitting the decedent's 2008 will to probate. For the reasons set forth in this opinion, we affirm the rulings of the probate court. Appellant is the stepdaughter, and appellee John Jennings is the son, of the decedent, Ilene Jennings. Ilene left two wills, one dated June 27, 1980, and one dated April 24, 2008. The 1980 will directed that Ilene's assets be divided equally between appellant and Jennings. The 2008 will directed that Ilene's assets go to John alone unless he predeceased her. Appellant filed a petition to have the 1980 will admitted to probate and Jennings filed a petition to have the 2008 will admitted to probate. Appellant objected, contending that Ilene was not competent to make a will in 2008, and that she did so only because she was coerced by Jennings. The probate court set a trial date to determine the validity of the 2008 will. Appellant appeared for trial and requested an adjournment, which was denied. Because appellant was not prepared to present any evidence, the probate court dismissed her objections to Jennings's petition and admitted the 2008 will to probate. -1-

Appellant first argues that the probate court erred by failing to hold a pretrial conference and issue a scheduling order as required by the court rules. The construction, interpretation, and application of the court rules is a question of law that is reviewed de novo on appeal. ISB Sales Co v Dave's Cakes, 258 Mich App 520, 526; 672 NW2d 181 (2003); Kernen v Homestead Dev Co, 252 Mich App 689, 692; 653 NW2d 634 (2002). Contested proceedings in probate court are governed by MCR 2.401. MCR 5.141. MCR 2.401(A) provides that the court, on its own initiative or at the request of the parties, "may" hold an early scheduling conference. At such a conference, "the court shall establish times for events the court deems appropriate," including the time for the filing of motions, completion of discovery, and exchange of witness lists. MCR 2.401(A), (B)(1), and (B)(2)(a). The use of the term "may" denotes permissiveness and is indicative of discretion. In re Forfeiture of Bail Bond, 276 Mich App 482, 492; 740 NW2d 734 (2007). Therefore, the probate court had the discretion to hold a pretrial scheduling conference and issue a scheduling order, but it was not required to do so. Additionally, MCR 2.501 states that if the court has not issued a scheduling order under MCR 2.401, it shall (1) schedule a pretrial conference, (2) set the case for alternative dispute resolution, (3) set the case for trial, or (4) enter any other appropriate order to ready the case for trial. MCR 2.501(A). In other words, the court's obligation under MCR 2.501(A) is "to enter whatever orders are necessary to bring the action to trial . . . ." 3 Longhofer, Michigan Court Rules Practice (5th ed),

Download IN RE ESTATE OF ILENE JENNINGS.pdf

Michigan Law