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WILLS/TRUSTS 16: Probate court noted that respondent chose to proceed without an attorney.

Petitioner and respondent are the children of the father. The father was the grantor of a revocable living trust (the trust) that named respondent as successor trustee. Relevant to this appeal, the father and mother transferred a house in Michigan (the house) to the trust in 2016 via quit claim deed. The mother died in 2016; the father died in 2018.

On February 22, 2018, petitioner filed a petition to invalidate the trust, alleging that the trust was invalid on several grounds. Along with that petition, petitioner filed a petition for injunction seeking to have the probate court enjoin respondent from selling the house (and from otherwise acting as successor trustee) and appoint her as a special personal representative in order to complete the sale of the house and distribute the proceeds.

The following day, a hearing was held on petitioner’s request for an injunction and appointment as special representative. Respondent informed the probate court that he had been served with the petition and notice of hearing around 10:00 p.m. the night before and had been unable to obtain legal representation.

Petitioner’s counsel and respondent spoke before the hearing and the attorney explained that respondent was absolutely entitled to representation, but that this was only a preliminary hearing for the purposes of kind of freezing things and seeing where we go from here. Respondent told the probate court that the house would be sold in three business days, and that he intended to give petitioner half of the proceeds from the sale.

Respondent later reiterated that he had the full intention of giving petitioner 50 percent of that money if he could complete the sale of the house. Petitioner’s attorney told the probate court that his client did not care who signed the closing papers, so long as petitioner received half of the proceeds from the sale of the house. Respondent again stated that he was willing to divide 50/50 on the sale immediately.

The probate court then asked petitioner’s counsel, if he were to do an order that confirmed the ownership of that house is in the trust, despite the questions of its validity, and there’s agreement to the beneficiaries of the trust that the proceeds of the sale be split equally between petitioner and respondent, that would be something that you would agree to? Petitioner’s counsel answered, Yes. Respondent agreed.

The probate court entered an order that authorized the sale of the real estate and that reflected the agreement the parties had made on the record at the hearing.

In March 2018, respondent, now represented by counsel, filed a motion for reconsideration or relief from the probate court’s order, arguing that the order inappropriately distributed trust assets before other issues in the action were resolved, and arguing further that respondent was prejudiced by his lack of notice and inability to retain counsel before the hearing. The probate court further noted that respondent chose to proceed without an attorney and made a statement under oath in court that petitioner gets half of the proceeds from the sale of the house.

A carefully drafted and properly executed estate plan can pass your property to your loved ones in the manner of your choosing. It can also help ensure that your children and other family members understand your wishes, thus minimizing the risk of disputes and litigation.

In addition to drafting wills, trusts and other estate planning instruments, Aldrich Legal Services can review your existing estate planning documents.

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REAL ESTATE 40: Tax Tribunal denied petitioner’s claim of a principal residence exemption (PRE).

MCL 211.7cc(2) provides that an owner of property can claim the PRE by filing an affidavit that must state that the property is owned and occupied as a principal residence by that owner of the property on the date that the affidavit is signed and shall state that the owner has not claimed a substantially similar exemption, deduction, or credit on property in another state.

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REAL ESTATE 38: Plaintiff fails to make land contract payments.

The land contract stated that T Company sold real property to plaintiff. The land contract further stated that if plaintiff failed to make a monthly payment, T Company could execute the quitclaim deed, thereby terminating plaintiff’s rights to the real property under the land contract.

CONTRACTS 6: Do you understand the clauses in your Purchase Agreement?

The trial court granted defendants’ motion for summary disposition, concluding that the claims against the realty companies were barred by the valid release contained in the purchase agreement and that the claims against sellers were required to be resolved in arbitration because they fell within the scope of the arbitration clause in the purchase agreement.

DIVORCE 29: Spousal support in gross is non-modifiable, whereas periodic is subject to modification.

As the name implies, periodic spousal support payments are made on a periodic basis. Periodic spousal support payments are subject to any contingency, such as death or remarriage of a spouse, whereas spousal support in gross is paid as a lump sum or a definite sum to be paid in installments. In addition, one major difference between the two types of spousal support is modifiability. Spousal support in gross is non-modifiable, whereas periodic spousal support is subject to modification pursuant to MCL 555.28.1.

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PROBATE 28: Probate court enters a protective order providing support for a community spouse.

A probate court’s consideration of the couple’s circumstances cannot involve an assumption that the institutionalized spouse should receive 100% free medical care under Medicaid or an assumption that a community spouse is entitled to maintain his or her standard of living. Medicaid is a need-based program, and a Medicaid recipient is obligated to contribute to his or her care.

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.

the probate court determined that Daughter J had managed the estate in a manner that promoted her own interests as a beneficiary over the interests of the estate. The probate court found that such management demonstrated mismanagement of the estate and that removal of Daughter J was therefore in the best interests of the estate.

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

Plaintiffs requested that the trial court, either through reformation of the First Easement or interpretation of the Second Easement, quiet title in favor of plaintiffs and declare them to be the owners of an easement to access Lake Superior through the ravine on defendants’ property, enjoin defendants from interfering with their use of the easement, and order compensation for damages to the stairs.

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