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PROBATE 34: Probate court determined that no oral trust had been created.

Decedent died on January 9, 2017. An application for informal probate and appointment of personal representative was filed on February 17, 2017. Decedent’s final will, which was executed on March 21, 2011, was admitted to probate. In relevant part, the will bequeathed $1.00 to A, and the residue of decedent’s estate was bequeathed to R.

The statements at issue were made by decedent at a conservatorship hearing that was held on December 28, 2016. R sought to become decedent’s conservator, and A sought to become co-conservator. R testified that he had documents submitted by two separate doctors stating that decedent exhibited early signs of dementia and Alzheimer’s disease. Decedent also testified before the court. The probate court made several inquiries during the hearing.

The probate court asked, “Don’t you think children have a normal fear that they may not be mom’s favorite?”

Decedent responded: I don’t know. There’s something built in there somewhere. But I think mine can do this the way it should be. And when I’m gone, I would like for them to have equal parts from my inheritance, if there’s anything left. I may be fortunate enough to use up this last two little bits I’ve got.

On cross-examination, A asked decedent whether she would have a problem with her and R serving as co-conservators. Decedent answered: “If it’s her thinking she’s not going to get as much money as he gets, tell her don’t worry about that. It will come out that she gets her even share.”

After the 2016 hearing, the probate court determined that decedent was mentally competent, but that decedent desired a conservator because her age and her physical infirmity rendered her unable to manage her property. R was appointed as decedent’s conservator.

The probate court determined that no oral trust had been created during the 2016 conservatorship hearing. Regarding whether a will was created by the resulting transcript, the probate court concluded that decedent’s oral statements could not operate as a will despite the fact that the proceeding had been transcribed.

Plaintiff A filed a motion for summary disposition pursuant to MCR 2.116(C)(10). First, A argued that decedent created an oral trust when she made certain sworn statements during a 2016 conservatorship hearing. Second, A argued that the transcript of the conservatorship hearing was a document that could be admitted to probate as decedent’s last will.

It is a general principle of trust law that a trust is created only if the settlor manifests an intention to create a trust, and it is essential that there be an explicit declaration of trust accompanied by a transfer of property to one for the benefit of another. The court concluded that decedent’s statements were precatory and unclear, and that they did not convey the intent necessary to create a trust.

In addition, decedent did not provide any express or explicit indication that the statements she made at the hearing or the resulting transcript would serve as her final will; in fact, she never stated a desire that her statements be distilled to writing. Furthermore, her statements lack any indication of finality in that they do not specifically identify her property or how she would like it distributed after her death. Instead, her statements appear only to express her wishes in the moment.

Therefore, given the circumstances surrounding decedent’s statements and her lack of clear language expressing intent, the probate court did not err by determining that a genuine issue of material fact did not exist as to whether decedent intended for the transcript to serve as her final will.

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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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