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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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