In re FORD ESTATE
McCARTHY
v.
FORD
Michigan Court of Appeals.
James E. McCarthy, in propria persona.
John Richard Slate, for Roy L. Ford and Marjorie J. Ford.
Before: SHEPHERD, P.J., and TAYLOR and R.D. GOTHAM,[*] JJ.
TAYLOR, J.
Appellee James McCarthy, the personal representative of the estate of Edith Mildred Ford, deceаsed, petitioned for a determination of title to real property, bank accounts, and other assets аllegedly held in a constructive trust. Appellants Roy and Marjorie Ford, decedent's son and daughter-in-law responded to the petition.
The parties stipulated below that decedent's final will, dated December 4, 1987, was valid and properly executed. Thus, this case does not involve a will contest. Rather, this case involves possible fraudulent inducement or undue influence on the decedent when making a number of earlier transfers to appellants. Deсedent's final will indicated that certain assets and accounts naming family members as co-owners were to become the sole property of those persons upon her death. In other words, those prior transfers were not to be considered part of decedent's estate. The residual estate was to be shared by decеdent's children equally. Appellee challenged the earlier transfers, rather than the will itself.
On March 20, 1982, a jury returned a verdict in *707 appellee's favor. The trial court subsequently entered an order dated August 20, 1992, requiring appellants to transfer the assets to the estate. Appellants appeal as of right from that order. We reverse and remand.
Appellants raise а number of issues on appeal. However, only one issue merits extended discussion. Appellants argue that the trial court erred in excluding the testimony of Gary Holland and Joyce Wooten regarding their observations of and discussions with decedent when they witnessed the execution of her final will. Holland is an attorney, and Wooten is Holland's secrеtary. While neither party contests decedent's final will per se, appellants argue that Holland and Wootеn were able to contribute testimony relevant to the prior transfers by decedent.
At the trial below, appеllee invoked the attorney-client privilege on behalf of the estate in order to prevent Holland and Wоoten from giving testimony to the jury concerning the prior transfers. The trial court honored the privilege, but created a special record outside the presence of the jury concerning Holland's professional relаtionship with decedent. Holland testified that decedent consulted him in order to witness the execution of a will draftеd by another attorney. Holland acknowledged that he had discussed the provisions in the will with decedent, but denied the existence of an attorney-client relationship at that time.[1]
The trial court ruled that Holland's discussion of the provisions in the will with decedent constituted legal advice sufficient to invoke the attorney-client privilege. The trial сourt then precluded Holland from giving any further testimony on the *708 special record concerning his discussions with decedent about the provisions in the will. None of Holland's testimony from the special record reached the jury. The trial court also precluded the jury from hearing testimony by Wooten on the basis of the attorney-client privilege as Holland's agent.
On appeal, appellants acknowledge that Holland was acting as decedent's attorney at the time of the signing of the will. Although appellants agree that decedent's communications with Holland wеre privileged during her lifetime, appellants argue that the privilege ceased to exist upon decedent's death. We agree, but for reasons different from those tendered by appellants.
Initially, the parties' stipulation that Holland was functioning as decedent's attorney at the time of witnessing the will is not binding on this Court because it relates tо a question of law. In re Finlay Estate,
Because the will was drafted by Joseph C. Fisher, he is thе only attorney covered by the attorney-client privilege in that regard. Holland, who may have represented the testatrix in other matters, did not thereby become her attorney for all purposes. In any event, even if he had been testatrix's attorney with respect to some aspects of the will, because witnesses to a will may prоperly be called upon to prove the will, MCL 700.146; MSA 27.5146, disclosures made by the testatrix to a person functioning as a witness are necessarily *709 intended to be disclosed to third parties and, therefore, are not confidential communications protected by the attorney-client privilege. Yates v Keane,
In light of the foregoing, we are convinced that the trial court erred in precluding the jury from hearing the testimony of Holland and Wooten.
With respect to the remaining issues raised by the appellants, we believe there was no error in denying the admission of medical records beсause the parties stipulated decedent's medical condition at the time of the videotaped deрosition. Further, the admission of the videotaped deposition, to the degree it was used to show that decedent was unduly influenced when she made transfers to her son, Roy Ford, is admissible, and the court did not abuse its discretion in admitting the tape. Price v Long Realty, Inc,
Reversed and remanded for proceedings consistent with this opinion.
NOTES
Notes
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Holland later represented decedent in another matter, and acknowledged that an attorney-client relationship was established at that time.