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.
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.
