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PROBATE 48: Decedent intentionally made no provision for son in her will.

Decedent had three children: petitioner and respondents. At some point, decedent went to her attorney and instructed him to draft a will for her. He did so after discussing the matter with decedent, and decedent executed the will. Decedent nominated respondents as co-personal representatives, bequeathed her entire estate to respondents, and indicated that she intentionally made no provision for petitioner.

Petition for Probate

Petitioner filed a petition for probate and requested that the probate court appoint him as a special personal representative of decedent’s estate. Petitioner acknowledged that decedent had executed a will before her death. However, petitioner alleged that decedent lacked the capacity to make a will and was under undue influence at the time. A special representative was necessary to allow Petitioner to investigate and to obtain necessary information to determine if further proceedings are necessary.

Respondents opposed the petition, arguing that petitioner was aware that decedent had appointed respondents as co-personal representatives and that all of decedent’s assets had already been distributed to the proper beneficiaries.

Hearing on Petition

At the hearing on the petition, petitioner’s counsel did not present any evidence. Instead, petitioner requested a continuance to allow for discovery. The probate court denied petitioner’s requests, denied the relief sought in the petition, and dismissed the matter.

At the hearing, petitioner’s counsel expressed a need for discovery regarding decedent’s longstanding mental health issues, explaining that there had been a lack of transparency on the part of respondents. Although it would have been proper for petitioner to engage in discovery after the petition was filed, the record contains no evidence that petitioner made any effort to obtain discovery. Specifically, there is no evidence that petitioner sought subpoenas for decedent’s medical records, attempted to depose respondents, timely obtained affidavits, or otherwise sought information to support the petition. Petitioner did not even prepare and present his own affidavit to the probate court.

Summary Disposition

Summary disposition is appropriate if further discovery does not stand a reasonable chance of uncovering factual support for the opposing party’s position. The probate court dismissed based on a lack of evidentiary support and insufficient information even alleged in the Petition.

Do Not Face Probate Litigation on Your Own

Aldrich Legal Services represents clients in a wide range of probate litigation matters. Given the emotional nature of these disputes and their financial impact on all involved, it is critical that anyone involved in such a dispute retain highly qualified legal counsel.

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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.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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PROBATE 51: Trust filed a petition to determine title to credit union account.

The probate court explained that the owners of the account are S and J. When S passes, J becomes the owner of the account. J is the one who had the authority to make the designation. Nowhere in any documents is there a designation by J that SJ be the owner -- or the beneficiary of the account. The designation made by his father was no longer binding because he was no longer the owner at the time J passed away.

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FAMILY LAW 77: Court awarded plaintiff sole legal custody; defendant was unwilling to work with plaintiff.

For joint custody to work, parents must be able to agree with each other on basic issues in child rearing including health care, religion, education, day to day decision making and discipline and they must be willing to cooperate with each other in joint decision making. If two equally capable parents are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children.

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