In re the Estate of McKim v. Cornell, 238 Mich. App. 453, 606 N.W.2d 30 (1999)
Author: Anonymous

Facts: The decedent, Richard McKim, died intestate, leaving three heirs at law.  Petitioner, was a live-in housekeeper and paramour to the decedent from 1992 until his death.  She claimed that an agreement existed that he would provide for her in his will, inheriting his house and $100K.  Decedent died without a will and Pet failed to produce or allege any writing signed by him evidencing any agreement. 

Issue:  Whether an oral agreement concerning a bequest under either implied contract of law or fact may be enforced under Michigan’s Revised Probate Code?                  

Holding: The statute precludes enforcement of an oral agreement concerning a bequest under a contract implied in fact theory, but our Legislature left open the possibility that recovery may be sought under a contract implied in law or quantum meruit.

Procedure: Petitioner, Heefner, appeals the probate order granting Res’s motion for summary. Affirmed

Rule: The only way to prove the existence of a contract to make a will or devise is by: a provision of a will stating material provisions of the K; an express reference in a will to a contract and extrinsic evidence proving the terms of the K; a writing signed by the decedent evidencing the K.   A contract implied in fact arises when services are performed by one who at the time expects compensation from another who expects at the time to pay for those services.

Rationale: Pet is required to prove an actual express agreement and not a mere unexecuted intention. The parties agreement is properly characterized as a K to make a will or devise. One who renders personal services on the expectation of a legacy promised is without a contract obligation and the promisee takes his chances on receiving a legacy, and if disappointed he cannot recover. 

The theory under a contract implied in law is inapplicable b/c the Petitioner lived together as husband and wife, thereby a presumption of gratuity arose.  The Pl may still recovery under implied in fact or quantum merit.  This Ct limits recovery to enforce oral agreements under contract implied in law or quantum meruit. 

Michigan’s Probate Code provides that the “only” way to prove the existence of a contract to make a will or devise is by complying with its requirements. The clear language of that statute and other probate statutes bar the enforcement of oral wills.  Allowing recovery under implied in fact theory would nullify the Legislative intent and purpose of the statute: to tighten the methods by which contracts concerning succession may be proven, and prevent introduction of uncertainty and excessive litigation.