Reformation of a deed based on mutual mistake; Johnson Family Ltd P’ship v White Pine Wireless, LLC; Clear & convincing evidence; Mutual mistake of law; Schmalzriedt v Titsworth; A deed failing to express the parties’ intent; Scott v Grow; Presumption that a grant or devise of real property made to two or more people is a tenancy in common; MCL 554.44

The court held that appellee (RoseMary) showed by clear and convincing evidence that she and the decedent (Frederick, the parties’ father) “were mutually mistaken about the legal effect of their deed, or wrote the deed in” a form that failed to provide for a joint tenancy with full rights of survivorship by accident. Thus, it affirmed the probate court’s order reforming the deed to terminate the real property interest that passed to Frederick’s estate and allowing RoseMary to transfer this interest to herself. The relevant facts were undisputed. “RoseMary purchased the property from Frederick and his wife years prior to the 2009 deed, and the only reason offered as a basis for placing Frederick on the deed in 2009 was to alleviate a duplicative cost that Frederick could not afford. There was also no dispute between the parties that this was the reason for the 2009 deed, and it was not to transfer a common interest in the land with Frederick that would be passed onto his estate upon death. The undisputed facts also permitted the inference that the siblings” (apart from appellant) consented to revising “the deed because they believed that RoseMary and Frederick mistakenly created a tenancy in common. RoseMary presented clear and convincing evidence of a mutual mistake of law, one in which the omission of survivorship language gave the deed ‘a legal effect not intended by the parties,’ . . . and met her burden to establish that the mistake was ‘shared by and common to’ Frederick.” The court found that Scott supported its conclusion. The Michigan Supreme Court held there that where “a written instrument fails to express the intention of the parties because of a mutual mistake as to the interpretation or legal effect of the words of the writing, though there is no misapprehension as to what words have been used, reformation is allowed.” As in that case, it was undisputed here “that the 2009 deed failed to express” RoseMary and Frederick’s intent due to “a mutual mistake or accident as to the legal effect of the words used in the deed, and the deed as drafted was insufficient to effectuate their intention and objective.”