Kemp Klein

PROBATE LAW CASE SUMMARIES

Alan A. May

Alan A. May summarizes the most important probate cases in Michigan as a service to colleagues and friends. We hope you find these summaries useful.

Alan May is a shareholder who is sought after for his experience in guardianships, conservatorships, trusts, wills, forensic probate issues and probate. He has written, published and lectured extensively on these topics.

He was selected for inclusion in the 2007 and 2008 issues of Michigan Super Lawyers magazine featuring the top 5% of attorneys in Michigan and has been called by courts as an expert witness on issues of fees and by both plaintiffs and defendants as an expert witness in the area of probate and trust law. He is listed by Martindale-Hubbell in the area of Probate Law among its Preeminent Lawyers.

A Fiduciary’s Duties and Fees In The Determination of Heirs Process

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.

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In Re Soble Revocable Trust

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.

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In Re Eyde Trust

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.

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In Re Williams Trust

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.

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In Re Jarman v Jarman

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.

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In Re Guardianship of IS

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.

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In Re Sizick Estate

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.

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In Re Scott Estate; In Re Scott Trust

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.

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In Re Gordon Revocable Trust

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.

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In Re Brohl Estate

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.

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In Re Arliss Estate

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.

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In Re Hall Trust

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.

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The Private Benefit Doctrine and Tax-Exempt Entities

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.

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In Re Johnson Estate

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.

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In Re Brudek Estate

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.

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In Re Harris Estate

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.

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In Re JLD Living Trust

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.

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In Re Estate of Piippo

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.

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In Re Weiser Revocable Trust

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.

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In Re Miller 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.

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In Re Schaddelee Irrevocable Trust

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.

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In Re Siddell Living Trust

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.

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In Re Estate of Weingrad

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.

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In Re Kurtz Protection Trust

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.

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In Re Conservatorship and Guardianship of Pobanz

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.

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In Re Howe Estate

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.

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In Re Ragsdale Estate

In re Ragsdale Estate/Tortious Interference with Right of Inheritance/Claw Back-Trust – Joint Account/Equitable Subrogation/Mootness/Real Party in Interest-Standing.

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In Re Storto Trust

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.

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JP Morgan Chase Bank, N.A., v Winget

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.

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In re Malloy Guardianship

In re Malloy Guardianship, “Guardian – Services by Others Compensability,” “Power vs Duty,” and “Motion to Modify – Power of Duty,” along with his Baseball Lore.

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In re Hawkins Memorial Family Educational Trust

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.

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In re Estate of Frisbie

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.

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In re Newland Guardianship

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

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In re Rech Living Trust

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

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In re Moss Special Needs Trust

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

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In re Grablick Trust

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

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In re Timco Estate

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.

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In re Comps-Klinge Trust

Standards on Appeal – Denial Leave to Amend Pleadings – Abuse of Discretion/Definition Probable Cause in Terror Cases/Undue Influence – Definitions/Leave to Amend

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In re Adams Trust

Transfer Fee from Circuit Court, Specific Tax Clause, Statute of Limitations, Laches, and Strict Compliance, along with his Baseball Lore.

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In re Eyde Trust

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.

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