This published case deals with the question as to whether prevailing counsel for a non-fiduciary can receive attorney fees from the estate; in this case the trust.
Baseball Lore:
On April 7th, I will celebrate my 84th birthday. During my period of time, I am on my 60th year of practicing law and my 80th year of practicing baseball. To celebrate, lets look at what has happened in baseball on April 7th.
The lower Court, in a bench trial, found a failure to rebut a presumption of undue influence and that the instrument in question were procured through undue influence and denied their admissibility. The failure to say why there was a presumption of undue influence was vitiated by the factual finding that there was undue influence.
Baseball Lore:
Should we get excited about the Detroit locals signing Justin Verlander? The easiest thing to do is not only look at Justin per se, but others of the same age group who tried to extend their careers or make a comeback.
A fourth trustee was appointed after the first trustee embezzled most of the assets from the trust. Interested parties brought a petition to remove the fourth trustee.
Baseball Lore:
Tommy Pham is an average ball player. He has played for ten ball clubs with only a very few above average years at the plate and in the field. He carries a .256 lifetime batting average and a slugging percentage of .422. He has played in post season games in 5 years.
Momma created a trust for Appellant’s deceased son. She granted him income and also granted to him a general power of appointment with a restrictive phrase stating that the instrument must have all the formalities of a deed.
Baseball Lore:
Two great baseball players are up for consideration for entry in the Hall of Fame; Barry Bonds and Roger Clemens. Both are being dissed because late in their careers they used performance enhancing drugs.
Without getting into an explanation of the multiplicity of documents and actions of two decedents which led the Probate Court to make fact findings and orders of distributions, instead, I would like to cite gems of law which led the Court of Appeals to vacate and remand the lower Court order and for an evidentiary hearing.
Baseball Lore:
For a baseball trivia fan, there is a book called The Dickson Baseball Dictionary. It has every phrase you have ever heard of in its 974 pages. It also has words and phrases, I and probably you have never heard of.
At the trial level, cognitive decline was shown, very unclean living, criminal tenants in the same building. Proposed ward showed average intelligence, as subsequent examination showing insufficient evidence of lack of capacity. The Probate Court found clear and convincing evidence and granted petitions for guardianship and conservatorship.
Baseball Lore:
In my last article, Hit By Pitcher, I mentioned that my dad had taken me, as a three-year old to a World Series game in 1945. I have only one recollection, sitting in the last row or reserve seats on the first base side. I have no recollection of whatever I may have seen.
Conservator filed a first and second account. Based upon a GAL report, interested parties filed objections. The key objections were an inventory value of a bank account which disclosed a lower value than a supplied bank statement opening balance and paying expenses for real estate not owned by the ward.
Baseball Lore:
I am writing about great hits by a pitcher. This is because of the great feat by Dodger Pitcher, Shohei Ohtani. Three dingers in one playoff game with 10 k’s as a pitcher. Probably the greatest feat by a pitcher, even the Babe.
Widow sought an elective share of decedent’s testamentary estate. Other interested parties sought to disallow the rights of a surviving spouse because of willful absence for a period of one year or more before the death of decedent.
Appellant agreed to a settlement agreement then sought to set it aside. The Court’s order memorializing the agreement was entered by stipulation. Appellant claimed mutual mistake and coercion.
Appellant had filed matters in Wisconsin and Michigan. The Wisconsin matter was based either on palimony on common law marriage. The action was premortem. Postmortem, a proceeding was filed in Michigan challenging the decedent’s testamentary documents based on incapacity.
Appellants were disinherited by the ultimate testamentary documents. Appellants claimed that by inference Appellant had actual notice of the antecedent amendments and their date. Appellee cited the 6-month statute of limitation.
Petitioner – Appellant alleged a multitude of wrongs regarding the affairs, estate plans and administration of inter-vivos and post mortem affairs. Respondent denied same on the basis of law and fact and moved for summary disposition which included limitations of action. Respondent prevailed.
Appellee asked for attorney fees as trial was approaching. There had been a stay entered as to releasing funds from the instant trust. Same was granted and fees were taken. Appellant had defended saying law of the case emanating from a previous appeal prevented modification of the Temporary Restraining Order; that she was denied due process and the attorney fees were unreasonable.
Decedent, while alive, executed a Ladybird deed to Appellee which was recorded. Appellant moved into decedent’s home, the res in question, to care for the ailing grantor. There is muddled evidence that a Quit Claim Deed was executed to Appellant by decedent with a bill of sale.
Appellee and Appellant litigated over the quality of trust administration given by Appellant as trustee during decedent’s lifetime. The matter was resolved through mediation and a settlement agreement was entered into. Appellee believed trustee breached a fiduciary duty by not honoring the settlement agreement.
Appellant is a mom. Leon is her son and mom’s designated patient advocate and donee of mom’s power of attorney for health care. Three daughters believed mom was being poorly cared for by Leon and brought a petition for guardianship before the Probate Court. Mom defended saying she didn’t need a guardian and voiced a preference if the lower Court found otherwise for Leon.
Charles and Betty created a joint revocable trust to be funded with Blackacre. The right to amend was statute in the plural. Upon the death of survivor, the trust was to be split in a fashion to save taxes to multiple sub trusts. Charles died first.
Plaintiff-Appellant had a contractual claim against a trust. After denial of claim, Plaintiff sued trustees in Wexford County which was indicated as the place of execution of the document giving rise to the cause of action as well as the location of the residence sold by trustees.
Appellants auctioned specifically bequeathed property. In addition, Appellants, as trustees, refused to convey land to a beneficiary entitled thereto without a 10% fee. Appellant was ordered to supply accountings and inventory which the trial court found incomprehensible.
Settlor established a special needs trust. Blackacre to Appellee, worth about $1,200,000.00, $30,000.00 to each Appellants. Appellee, as trustee didn’t think, postmortem, there was enough liquidity in the trust to pay Appellants their expectancy, so (instead of simply borrowing the money), he voluntarily entered into a non-judicial modification agreement providing for Appellees partial disclaimer, the sale of Blackacre and an equal division of the proceeds.
Appellant was fiduciary for BJH (donee power of attorney). Allegations of delinquency were made by Appellee and later by a Court appointed Guardian Ad Litem. Appellant was removed as donee and ordered to account and disgorge. Objections were filed to accounting.
This matter had been before the Court of Appeals prior to the instant appeal. In the last appeal, Appellant challenged a settlement agreement he entered into with “John” which “John” would receive 42 percent of the estate and Appellant 58 percent. In some small detail, the estate was reopened to seek Contempt for Appellants not complying with the Court’s orders.
Decedent, during his lifetime, believed that daughter was mishandling decedent’s money. Decedent had a fractured relationship with Appellant and a close relationship with daughter. Daughter was delineated in some manner to benefit from the structuring of a credit union account. The Court doesn’t say how she was to have benefited.
Baseball Lore:
I would like to tell the reader about my dreams to make our national pastime a better game. Reduce the Big league to 16 teams. If it did the quality of the sport would improve exponentially. Stars would face stars and Triple A baseball would be a real proving grounds for the Majors.
Appellant timely appealed an order challenging the fees of fiduciary. Instead of addressing that singular issue, Appellant argued previous orders beyond the time afforded for an appeal on those issues. Appellant sought to Leave to Appeal to the Michigan Supreme Court.
Decedent, while alive, went to an attorney for an estate plan. Documents were prepared and sent to decedent. She never signed the documents and sat on them for years. Decedent left a handwritten document saying who gets what. This too was unsigned.
Appellant and Appellee petitioned to be guardian of Appellant’s wife and Appellees spouse was appointed. Controversey ensued when guardian blocked access for visitation by Appellees.
Petitioners Appellants were a child of decedent and an ex-wife. “Ex” claimed to be owed money because of a judgement of divorce. Child wished to be appointed P.R. under a Will.
This matter was brought in a Circuit Court by a vendee seeking specific performance of a land contract. Conservator defended claiming ward did not have capacity to contract. Evidence was introduced both ways.
An apparent wrongdoer can use the judicial process to avoid detection. After many attempts to avoid detection, it was discovered that money, apparently held in an IOLTA account was gone.
Appellant was a son of deceased. He had a history of abuse of his mother, but as she aged he moved in with her and became her caregiver. Son took mom to an attorney who drafted a Will leaving the residence to son which differed from the antecedent testamentary document.
Appellee is an attorney. He rendered services to decedent during her lifetime while under conservatorship including eligibility for Medicaid Benefits. In his words, he withheld billing services because he wanted to make sure, if necessary, ward’s cost of care could be paid.
Appellant faced a petition for involuntary treatment brought forth by a hospital social worker. Counsel was appointed and an agreement was made as to length of stay. A new petition was brought with the same result – the new petition was brought at the request of Appellant.
Decedent executed a customized form Will in the office of an attorney. Two witnesses signed. Appellee obtained admission of the Will through informal proceedings under MCL 700.2504. Appellant objected, saying the Will should be set aside because of faulty execution.
Decedent left a Will and Trust. Appellee said the Michigan land went to him. Same was delineated as “membership certificates of an LLC.” Residue to Appellant. Since there was no LLC established, Appellant believed the land went to the trust and thence to him.
Appellant somehow created a trust for his mother naming himself as trustee and beneficiary of mom. The sister of mom gave mom a substantial inheritance. That inheritance was transferred over to this trust, not an antecedent trust.
Deceased husband, during his lifetime, entered into an agreement with his wife who was not the mother of husband’s children. The agreement provided that husband was conveying real estate to wife by the entireties. The property at issue in this case was not conveyed in the agreement and remained in the name of husband.
A trust was registered in Florida. Appellant was the trustee and was removed. He now objects to the current trustee’s 5th Annual Account. He objected that the SCAO short form was used and not the long form.
Hector settled a Circuit Court lawsuit. The Court ordered the establishment of special needs trust. One was drawn naming Appellant as a residuary beneficiary. The trust was signed by the prospective trustee. Hector never signed the trust.
A conservatorship estate owned Blackacre and personal property situated thereon. Appellant submitted an offer to purchase the real estate for $15,000.00 over the listed price with a $5,000.00 escalator and with contingencies. Maximum of $75,000.00 over the listing price. Ultimately, buyer offered $40,000.00 over listing price plus.
This matter of Guardianship of an adult was considered by the lower Court under the Mental Health Code, not EPIC. In a published opinion, the Court of Appeals covers many issues which would be helpful to the practitioner. In removing mom as co-guardian, the panel said, “the hatred among the parties is very obvious and not in the best interest of (the ward).”
The parties litigated the issue of what if any fees should be paid for establishing a conservatorship and by whom or what. The parties entered into a stipulated order stating that the trust of the ward of conservatorship shall pay the fees. Then the Court entered a new order directing the parties to submit documentation as to how the entities were benefitted.
To what extent can a fiduciary of an estate or trust involve himself, herself in the process in the determination of heirs? The answer depends on context. Beware of the issues and research the issue wherever you are. If a search is necessary to give notice or distribution, do it and follow the rules of due diligence as suggested above.on context. Beware of the issues and research the issue wherever you are. If a search is necessary to give notice or distribution, do it and follow the rules of due diligence as suggested above.
This Michigan Supreme Court case emanates out of a request for payment to a guardian by an insurance company for services rendered by employees of guardian who is determined to be a professional guardian.
Appellant and Appellee, son of deceased and spouse were co-fiduciaries of dad’s trust. Spouse disclaimed her right to principal, not income. At the pertinent time, son administered the trust, including accounting without concurrence by mom, co-trustee.
Baseball Lore:
The first two baseball players in the Major League who were African American were Moses Fleetwood Walker and his brother, Weldy Walker. They both played for the Toledo Blue Stockings when Toledo was in the American Association which was reputed to be as good as the National League. At the end of the season the two leagues did get together for a World Series. It was called the World’s Championship Series.
Partnership agreements routinely restrict the assignment of ownership interests unless the remaining partners consent to the transfer. Many of those Partnership transfer clauses allow for transfer without consent if the assignment is to a family member or acquisition is through the right of inheritance.
Husband and wife had separate trusts. Wife’s trust gave husband a power of appointment. Though limited, the assets conveyed by the power could ultimately reside in a limited group or a broader group. Husband exercised the power contrary to the interests of Petitioner, Appellant.
Appellees sought to use the jurisdiction of the Probate Court in Michigan, as the assets were in Michigan, the lower Court entertained jurisdiction. The first thing that the Court of Appeals ruled on whether Michigan still had jurisdiction and determined under MCL 700.7205 that it has jurisdiction to continue to entertain matters before it.
This is a matter of trust interpretation. The lower Court decided the matter on a petition for instruction. The two decedents each had two children from previous marriages.
Appellee in the lower Court alleged Appellant, his co-fiduciary, defrauded him and he sued. Appellant did not answer after multiple notices. Later, Appellant moved to set aside a default judgment entered against him.
Appellant was a co-plenary guardian. Her actions and lack of actions caused a consternation to the ward’s father and her co-fiduciary. She ignored directives and orders of the lower Court. At a hearing she was removed sua sponte when no petition had been filed requesting that relief.
This is the third Appeal by the same family to transfer assets to a community spouse. In each Appeal the lower Court ruled with the community spouse and purported to take the non-community spouse’s needs and expenses into consideration and three times the Court of Appeals said it hadn’t.
The Probate Court had subject matter jurisdiction to set aside the lady bird deed. This, unlike the Will and the Trust contest, was in rem not quasi in rem. Therefore, it is the Court that decides.
Appellee and Appellant, two siblings, arbitrated a corporate buyout. An accounting firm was engaged to determine the amount necessary one side need pay to another. This accountant’s summary was submitted to the arbitrator and became part of the arbitrator’s decision.
Decedent, while alive, did not like a certain party, not a party to this matter, continuing with the management of his affairs. He elected, while apparently competent, to execute a Durable Power of Attorney with the Defendant. The Power of Attorney allowed gifting in the discretion of the donee of the power.
This matter reviews applicable law as to the duties of a fiduciary and liability for negligence. Defendant, Findling was a fiduciary and was charged by Plaintiffs with negligence. The lower Court found no negligence and dismissed the Complaint.
The factual situation before the lower Court was whether an inter vivos transfer of an asset to one trust distributee was a gift or an advancement. Two distributees allege that it was an advancement and sought discovery. A non-spoilation letter was sent out. Without going into each and every electronically stored information request (ESI), Appellant did not, in the opinion of the lower Court, comply.
Charitable organizations are exempt from income tax under Internal Revenue Code (IRC) §501(c)(3) if they are both organized and operated exclusively for one or more of the public purposes specified in that code section. An organization failing to meet either an organizational test in its formation documents or an operational test in actual practice is not exempt.
Appellee inquired of her brother whether decedent had a Will and demanded it from her brother/Appellant. If he had it, he never answered. Appellant lived in decedent’s home rent free. Taxes were not being paid. Appellee started an intestate informal proceeding.
Mom owned Blackacre since 2015. She had a male friend with whom she shared a relationship since 2009. In 2018, Appellee’s daughter came to Michigan and found mom living in a squalor. Later, she learned that mom transferred a one-half interest in Blackacre to the male friend.
Decedent, a widower, had three children at the time of his death. One became personal representative. That person alleged to have been a grantee of a Quit Claim Deed regarding decedent’s real estate. The transfer of course was inter vivos and it was alleged by the Appellee that the conveyance was during the period of incompetency.
Distributees of trust one sought to have the lower Court prevent a finding of validity of trust two, as grantor had a guardian and conservator. Evidence was introduced of a mild cognitive disorder. Grantor objected to the guardianship and conservatorship.
Appellant wanted the real estate for less than Appellee sought from the market. Upon obtaining an offer, he offered the real estate to Appellant at the same price; she failed to meet the price.
This case is a single issue of trust interpretation. Appellant believed one of the trustees was a successor trustee with no statutory duty to pursue the other for alleged breach of fiduciary because
Appellant challenged a testamentary document claiming it to be the product of undue influence. Appellant asked for a copy of the trust that they were about to challenge. The lower Court set a hearing as to whether they should have a copy of the trust.
Corporation/Plaintiff believed it had rights against Defendant Trust. Defendant/corporation was owned by a second corporation. Ninety-five percent of the stock in the second corporation was owned by Defendant trust for which Defendant /individuals were trustees.
Decedent made an estate plan. The plan was composed of two documents, a trust agreement and a declaration of trust ownership. Each document was executed. One document, the declaration of trust ownership delineated a certain investment account. The asset had a specifically named beneficiary; Appellee.
A married couple each had a trust. There was mutuality as to disposition included possessory rights to personal property with maintenance and support out of corpus. One spouse died. The other amended his trust diminishing his sister’s distribution. Settlor in the amendment increased his son’s distributive share. The surviving spouse died.
Appellee finalized an estate with non-SCAO forms in violation of MCR 5.1123(A). That rule says “if” a relevant form exists it “must be used.” The lower Court adjudicated the matter on the basis of the non-SCAO forms.
Second marriages can keep Probate lawyers in business. In this case, husband and wife each had
children from previous marriages. They created a joint trust so that after the death of the second spouse
all children should share equally.
Appellant was a conservator. As a conservator, he was ordered to pay the fees on a Guardian Ad
Litem over his objection. Later, when he hadn’t paid those fees, the lower Court ordered the County to
pay those fees and Appellant to repay them.
Appellant wanted to challenge a personal representative’s fees. The lower Court acknowledged that objections were made but conducted no hearing. Appellant wanted the Probate Judge disqualified, she refused but did not refer the matter to the Presiding Judge.
Appellant claimed rights to real estate based on a forged deed. Appellant claimed a share of decedent’s estate as a widow.
In re Broemer Estate/Failure to Object/”Essentially” Same Allegation/Plaintiff Error – Substantial Rights.
Reynolds v Van Dan Steene/Incapacity/Deciding Fact vs. Genuine Issue of Material Fact.
In re Ragsdale Estate/Tortious Interference with Right of Inheritance/Claw Back-Trust – Joint Account/Equitable Subrogation/Mootness/Real Party in Interest-Standing.
In re Greer Conservatorship/ Power of Conservator without Court Approval/Dispose/Fiduciary Duty to Ladybird Grantee – Remainderperson.
In re Claeys Revocable Living Trust/Sale vs. Distribution in Kind/Clear Error – Intent Trust/ “As he Sees Fit” along with his Baseball Lore.
In re Storto Trust/Interaction of Summary Disposition Burdens/What is a Valid Trust Amendment/Presumption of Revocation vs. Intent of Settlor/Will and Trust Law – Interaction/Affidavit without Counter Affidavit it can never be a Genuine Issue of Material Fact.
JPMorgan Chase Bank, N.A. v Winget, unpublished opinion of United States District Court of Appeals for the Sixth Circuit, issued July 1, 2022 (Case No. 21-1568), “Revocation of a Trust – Fraudulent Transfer,” “Involuntary Transfers” and “Unjust Enrichment,” along with his Baseball Lore.
In re Malloy Guardianship, “Guardian – Services by Others Compensability,” “Power vs Duty,” and “Motion to Modify – Power of Duty,” along with his Baseball Lore.
In re Hawkins Memorial Family Educational Trust/Qualified Trust Applicants vs. Qualified Trust Beneficiary/Interpretation of Trust – Review de novo/Standard of Review – Clear Impression that a Mistake has been Made/Four Types of Persons who may get an Accounting.
In re Estate of Frisbie/Intent- an additional way to upset a trust/Standard of Appel – Factual findings – clear error/Surcharge/Good faith vs bad faith.
In re Newland Guardianship/Recognition of DPOA/Suspension of DPOA/Exception to recognition of DPOA “shall”/Best Interest of the Ward/Dispositive Rulings – Abuse of Discretion
Kilian v TCF National Bank/Fiduciary Misfeasance – Statute of Limitations/Adequacy of Notice – Substance of Document Not the Caveat
In re Mansharamani Living Trust/Dissolution of special Needs Trust
In re Estate of Schuhmacher/Sale of Real Estate – All Heirs Need Not Consent/Court Must Follow Stipulated Agreement of all Parties.
Maine Estate v Key/Ward Can’t Convey Without Probate Approval.
In re Rech Living Trust/Affidavit of Scrivener – Evidence of Decedent’s Intent/Time of Distribution/Interpretation of Trust De Novo/Rule of Construction – Last in Time Prevails/Trust Construed as a Will
Barretta-Biondo v Shellenbarger/Genuine Issue of Material Fact/Res Judicata/Real Party in Interest/Tortious Interference with Inheritance.
“Sunday Schmooze with Michigan Authors” will take place on Sunday, Nov. 13, at 11am. You are invited to join fellow Michigan authors in The J’s Janice Charach Gallery for an informal, up-closeand-personal opportunity to meet and engage with our dedicated community of book lovers
In re Moss Special Needs Trust/Ambiguity – Extrinsic Evidence/Scrivener Affidavit/Rules of Construction – Last Iteration Favored/”But”/Special Over General/Termination of a Special Needs Irrevocable Trust/Section MCL 700.7412(2)/Change of Circumstances/Intent and Purpose of Trust
Probate Court Order Affecting SSD Receipts, Joint Bank Account, Preemption
Sparling v Sparling, Co-Trustee of Sparling Trust/Laches – Runs with Statute of Limitation/Election – Evaluation of Benefits Received/Statute of Limitations, Why they didn’t apply/Irrevocability, Definition/Post Jury, Evaluation by Judge of Affirmative Defenses
Mental Health Code/Due Consideration to Wishes of Ward/Interpretation of Necessity of Report/Interpretation – Appellant Living Arrangements.
Mich App _____ (2021) (Docket No. 353951)/Effect of Divorce on Testamentary Transfer/ Relation by Affinity/RPC v EPIC/Ambiguity – Change of Law/Interest of Justice / December 28, 2021
Medicaid Trust Violation/Challenge of Disbursements/Challenge of Fees/Standard of Judging Reasonableness of Attorney Fees / December 30, 2021
Time for Presentation/Contingent Claims/Wrongful Death / December 30, 2021
Proof of Paternity/Expressio Unis Est Exclusio Alterius/Published Case/ January 24, 2021
Jaw Jaw Jaw is Better than War War War/Out of Court Settlement of Estate/Estoppel/Statute of Limitation a) Breach of Fiduciary Duty, b) Breach of Contract/Failure to Distribute.
Subject Matter Jurisdiction Regarding a Divorce Judgment – Interpretation v Modification/Joint Account with Survivorship-When it Became Such and What it Means/Petition v Complaint
Standards on Appeal – Denial Leave to Amend Pleadings – Abuse of Discretion/Definition Probable Cause in Terror Cases/Undue Influence – Definitions/Leave to Amend
Termination of a Trust/How, When and Why/Removing the Trustee/Disqualification of a Judge
Ending Guardianship and Conservatorship – Burden of Proof/Priority verses Suitability
Conflict of Laws, Discretional Insurance, Baseball History
Civil Commitments/Right to “effective” Counsel/Standards/Burden of Proof/Presumption
Transfer Fee from Circuit Court, Specific Tax Clause, Statute of Limitations, Laches, and Strict Compliance, along with his Baseball Lore.
Change of Situs of the Trust – Subject Matter Jurisdiction, Trust Provision verses Trust Code and other Codes, Trust as a Contract – No, Interest of Justice – Who’s Burden and Qualified Trust Beneficiary – Rights, along with his Baseball Stats.