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A Better Partnership
April 02, 2009

COA Opinion: Testamentary capacity is arbitrable

On March 31, 2009, the Court of Appeals published a 2-1 opinion in In re Nestorovski Estate, Case No. 271704, holding that probate disputes, including the determination of testamentary capacity, may be subject to binding arbitration. The Court of Appeals' decision is contrary to the Michigan Supreme Court's decision in In re Meredith Estate, 275 Mich. 278, 266 N.W. 351 (1936), which held that testamentary capacity is not arbitrable. The Court of Appeals majority based its decision on legislative, court rule, and common law developments that have occurred since the Michigan Supreme Court's decision in In re Meredith Estate over 72 years ago. In dissent, Judge Saad agreed that if the Michigan Supreme Court were to address the issue, it would overrule In re Meredith Estate. But Judge Saad persuasively explained that the Court of Appeals has no authority to overturn decisions of the Michigan Supreme Court and consequently would have affirmed the trial court's decision. The Court of Appeals' majority decision can be found here. The dissent is here.

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