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MICHIGAN WILLS/TRUSTS 32: The probate court found that the Memo substantially complied with the Trust’s method for amendment.

The Trust contains the following provisions pertinent to this case:

The Settlor may desire to prepare a written statement or list, either entirely in his handwriting or just signed by him, to dispose of tangible personal property to a certain person or person[s] in the future. If the list does not qualify as an amendment, I nevertheless hope those entitled to my estate will respect it.

The residue of the Trust Fund, real and personal, shall be distributed as follows: 1) The Settlor’s sister shall receive fifty percent (50%) of the total trust residue. 2) Each of the following grandchildren of the Settlor shall receive ten percent (10%) of the total residue.

I reserve the right to amend or revoke this Agreement, wholly or partly, by a writing signed by me or on my behalf and delivered to Trustee during my life.


A document (Memo) purported to be a subsequent amendment is at the center of this issue. After Settlor’s death, petitioner provided a binder containing the Trust and other documents to respondent. Petitioner brought respondent either an original or a copy of the Memo along with documentation regarding a vacation timeshare referenced in the Memo.

Respondent testified that she photocopied the Memo and gave it back to petitioner. Petitioner disputed respondent’s version of events, attesting in an affidavit that the original signed Memo was located in the binder.

The Memo begins in typewriting: Certain of my personal effects have special meaning; I desire that upon my death, these items be given to those herein indicated. Below this preface are spaces for listings of Description of personal property and desired recipient and relationship. Filled in, in handwriting, on the Memo are my personal vehicle, home, 4880 Westland, and $50,000 – cash minimum, as personal property to be distributed to petitioner. The Memo reflects that Settlor signed it. Beneath that signature is another handwritten entry, vacation time share, also as personal property to be distributed to petitioner, beneath which appears another signature of Settlor. While the parties agree that the signatures and handwriting on the Memo are Settlor’s, respondent claims that neither she, nor anyone else of whom she knew, had any discussion with Settlor regarding the Memo or the disposition of the property listed in it.

Petition for Summary Disposition

Petitioner filed a petition with the probate court to determine the validity of a trust amendment, claiming that respondent had refused to honor the Memo as a valid amendment to the Trust. Petitioner moved for summary disposition under MCR 2.116(C)(10), arguing that no genuine issue of material fact existed as to whether the Memo was a valid trust amendment that required respondent to distribute a minimum of $50,000 from the Trust to petitioner.

Court Hearing

The probate court rejected respondent’s argument that it could be inferred that Settlor had destroyed the original Memo. The probate court determined that petitioner had carried her burden to present evidence that the original Memo existed at the time of Settlor’s death, in the form of petitioner’s affidavit stating that she had given the original Memo to respondent within a binder of Settlor’s estate planning documents. Further, the probate court found that respondent had failed to provide evidence refuting petitioner’s claim, because respondent’s testimony that she had received either an original or a copy of the Memo separate from the binder and copied and returned it did not contradict petitioner’s evidence.

The probate court also found that the Memo substantially complied with the Trust’s method for amendment, as required by statute, and that the Memo was not merely an attempt to distribute personal property. The probate court granted petitioner’s motion for summary disposition, confirming the validity of the Memo as a trust amendment.

Assistance with Estate Planning

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MICHIGAN REAL ESTATE 95: Property owners did not place a condition upon the delivery of the deed; rather, they delivered the deed to themselves.

When the delivery of a deed is contingent upon the happening of some future event, title to the subject property will not transfer to the grantee until the event has occurred. However, in this case A and J did not place a condition upon the delivery of the deed; rather, they delivered the deed to themselves, then deposited the deed with their attorney with the instruction to record the deed only upon the happening of a future event, thereby placing a condition only upon the recording of the deed.

MICHIGAN PROBATE 57: Brother granted permanent guardianship of siblings.

At a multiday hearing to address the extension of the guardianship, the eldest children, the mother’s relatives and friends, and school personnel testified regarding the mother’s care of the children, appellant’s treatment of and interaction with the children, and the eldest siblings’ role in aiding the mother to raise the children.

FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

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