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The trust settler, “decedent” executed a “pour-over” will in which the residuary of his estate was to be held, managed, and distributed according to the trust, which was created in March 2006, restated in its entirety in November 2014, and amended in December 2014. The decedent died in December 2014, and was survived by his four adult children, who are the beneficiaries of the trust.  

The trust’s initial trustee filed a petition in November 2016 requesting that the probate court approve his first (and final) accounting of trust assets, as well as permit him to resign as trustee and appoint a successor trustee because dealing with Petitioner was becoming extremely difficult. After a contested hearing, the probate court granted his petition.   All possible successor trustees declined to act.  Acknowledging that “the Court can’t compel someone to serve, and it’s not in the interests of the beneficiaries for someone to be forced to serve against their will,” the probate court found that it could appoint a successor, and it appointed Respondent as successor trustee. The court also found that the accounting was proper. 

In May 2018, Respondent filed a petition with the probate court to allow a first annual accounting reflecting the changes in trust assets between February 15, 2017 and February 15, 2018. Petitioner filed numerous objections to this accounting and, after a contested hearing, the probate court approved it.  On March 7, 2019, Respondent filed a petition to allow a second annual accounting, including the period from February 15, 2018 to February 15, 2019. At the hearing, Respondent testified that by the time the Decedent’s home had been sold, there were no other trust assets to be distributed to beneficiaries. After the contested hearing, the probate court entered an order allowing the second accounting and ordering Petitioner, as a sanction for a frivolous filing, to pay the trust’s attorney fees and costs incurred in relation to the petition. This appeal followed.


 Although Petitioner’s brief on appeal possesses most of the formal requirements of an appellate brief, it consists primarily of a long recitation of her perception of the factual and procedural history of this case. This statement of facts is far from “without argument or bias” as required by our court rules. See MCR 7.212(6). Moreover, the majority of the statements of fact made in this section are not supported by citations to relevant transcripts, pleadings, or other documents filed with the probate court, which is also required by our court rules.  


Petitioner also argues that Respondent violated his duties as trustee by failing to cause the trust to distribute $40,000 to her and purchase a one-bedroom condominium for her, as the terms of the trust dictate. This issue involves the interpretation of a trust instrument, which we review de novo in the same manner as a contract. Our goal in interpreting a trust instrument is to ascertain and give effect to the intent of the settlor, which is to be gauged from the trust document itself unless there is an ambiguity.  Regarding the $40,000 distribution, it was clear from the first accounting filed by Respondent that, due primarily to Petitioner’s ceaseless litigation, there simply were insufficient trust assets to pay her that distribution. Regarding Respondent’s failure to cause the trust to purchase Petitioner a one-bedroom condominium, Respondent argues that the language of the trust instrument permitted him to spend “any” amount of the proceeds “in his sole discretion” toward this end, and that, in light of the depletion of a large portion of the trust assets, the possibility of further litigation, and his fiduciary duty towards all beneficiaries, not just Petitioner, he had therefore opted to exercise that discretion not to spend trust assets on a one-bedroom condominium.   We agree.  Under the circumstances of this case, in which one beneficiary has drained the trust of hundreds of thousands of dollars in assets, as well as prevented the sale of real property as dictated by the trust for over two years, requiring forcible eviction at yet more trust expense, we cannot say that Respondent abused his discretion or violated his fiduciary duty by choosing to spend none of the proceeds in this manner.


Finally, Petitioner argues that the probate court erred by imposing sanctions upon her for filing frivolous objections to the petition for a second accounting. We review for clear error a probate court’s determination that a filing is frivolous and worthy of sanctions. Whether a pleading is frivolous depends on the facts of the case. In this case, the probate court found that, in filing her objections to Respondent’s petition for a second accounting, Petitioner was “simply trying to drain all of the assets out of the trust.” The court further stated that “this hearing should not have been necessary” in light of the fact that Petitioner was responsible for decreasing the assets of the trust to the point that the distributions she sought could not have been made by Respondent. Therefore, the probate court found both that Petitioner’s primary purpose in filing objections was vexatious and that her objections lacked arguable legal merit.


If you have lost a loved one, the last thing you should have to deal with at this time is the confusing and often frustrating process of probate.

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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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