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WILLS/TRUSTS 13: Reimbursement to trustees for fees incurred in defending the petition.

In 1990, Respondent M and her now-deceased husband created the Trust. After the husband’s death in 1995, the Trust became an irrevocable. In 2016, respondents signed a document purporting to remove petitioner as a co-trustee of the Trust pursuant to the trust language, and to appoint another child as a co-trustee.

In 2017, petitioner filed a petition with the probate court seeking removal of all trustees from the trust and the appointment of an independent trustee to administer the trust.

In August of 2017, Respondent M filed a motion for summary disposition, arguing that the petition had failed to allege that she was incompetent or otherwise incapacitated, or to otherwise allege any basis for her removal as trustee or for the removal of the other trustees in contravention of her wishes as settlor of the trust, current co-trustee, and current sole beneficiary. Respondents also filed a joint motion for summary disposition.

After a hearing, the probate court granted both motions, holding that the petition had failed to state a claim on which relief could be granted and that there was no genuine issue of material fact, such that respondents were entitled to summary disposition. The probate court noted that it lacked the power to remove Respondent M and appoint an independent trustee if she was alive, competent, and had not resigned as trustee, and that nothing in the petition challenged Respondent M’s competency.

Respondents subsequently moved the trial court to impose sanctions on petitioner for a frivolous filing and to award respondent’s attorney fees and costs, for having to defend the petition.

An action is frivolous if the party had no reasonable basis to believe that the facts underlying the party’s legal position were in fact true or the party’s legal position was devoid of arguable legal merit. Nothing in the initial petition alleged that Respondent M had died, resigned, or was incapacitated.

After a hearing on respondents’ motion for reimbursement of attorney fees and sanctions, the probate court issued a written opinion and order finding petitioner’s initial petition frivolous. The probate court awarded respondents $37,000 in attorney fees and costs, of which $10,000 was to be paid by petitioner individually, while the remaining $27,000 was to be paid from the trust.

The $27,000 ordered to be paid to respondents from the trusts was not a sanction, but instead was reimbursement to the trustees for expenses incurred in defending the petition. The Trust contains language providing for the reimbursement of expenses incurred by trustees in administering the trust.

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REAL ESTATE 36: Plaintiff argued that her claim was not time-barred because it did not accrue until the grandmother’s death.

Plaintiff’s interest in the subject property is best characterized as a remainder estate, because her right to possession of the property was postponed until the occurrence of a specific contingency, that being the deaths of the grandparents. Plaintiff pursued this action within the 15-year limitation period; accordingly, this action is not barred by MCL 600.5801(4).

LITIGATION 6: The terms of the agreement prevails over the course of performance.

The trial court determined that under the UCC, the express terms of the parties’ agreements prevailed over the course of their performance and course of dealing. Although a course of performance may show that parties have waived a specific contractual term under MCL 440.1303(6), the statute does not similarly provide that a course of dealing may demonstrate waiver.

PROBATE 27: Petitioner filed a petition for mental-health treatment.

In support of the allegations, petitioner attached clinical certificates from a physician and a psychiatrist who observed respondent at the hospital. Both doctors diagnosed respondent with bipolar disorder, determined that she displayed a likelihood of injuring herself and that she did not understand the need for treatment, and recommended a course of treatment that consisted of 60 days of hospitalization and 90 days of outpatient care.

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FAMILY LAW 32: Trial court committed error in failing to address whether there was an established custodial environment.

On appeal, plaintiff argues that the trial court failed to make any findings regarding (1) the child’s established custodial environment, (2) the child’s best interests regarding the grant of primary physical custody to defendant, (3) the child’s best interests with respect to parenting time, and (4) the child’s best interests pertaining to the parties’ dispute over daycare.

PROBATE 25: Daughter removed as personal representative of the estate.

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REAL ESTATE 32: Plaintiffs and defendants executed a second easement.

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LITIGATION 4: Plaintiff claimed installation of hardwood flooring breached the condo bylaws.

Defendants completed the project. Plaintiff did not pay for any of the costs of the project. Defendants moved to compel plaintiff to pay one-half of the costs under the agreement. Plaintiff responded that defendants had materially breached the agreement in several ways, including by denying her the right to supervise the project, by refusing to give her an installation schedule, and by starting work before plaintiff approved of the start date.

FAMILY LAW 30: Discretionary trust assets cannot be reached to satisfy claims for child support and alimony.

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