The Mental Health Merry-Go-Round Part I

I don’t own a gun, have never owned a gun, and never want to own a gun.  Guns make me nervous.  So I have no problem with laws that reasonably limit the types of guns people own and places they can be carried.  That said, I am frustrated that repeated “big news” events involving gun violence devolving into to the same old tired division of political self-righteousness  – NRA people are mean and nasty… blah blah blah.

What particularly bothers me is that almost all of these high profile events, it seems to me, are really stories about the way society manages mental illness.  As a nation we improved when, some decades ago, we finally went away from the insane asylum model of treatment towards treating people with mental illness in the community. 

My take is that these high profile news events provide an opportunity to address the problems that have arisen as a result of the de-institutionalization of the mentally ill.  It is well recognized that what has largely happened is that our prisons have become the new mental health institutions.  Mentally ill people commit crimes when they go off their meds or don’t receive appropriate treatment.  But if we take the next step and provide adequate community supports maybe we realize the promise of the movement that began decades ago, save a few bucks by reducing our prison population, and actually make the lives of those people with mental illness(and their family members) better.

I was prompted to write this blog by an article I saw on regarding Governor Snyder’s position on health care exchanges.  Click here for article.  Maybe it’s just politics, but I like where he is going with mental health initiatives. 

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Terror Clause Update

Finally got a date for oral arguments in the case of Miller Osborne Perry Trust – February 13, 2013.  Of course that means it will still be months before we have an opinion.

This is the case discussed in the post below: General Perry’s Terror Clause.

Either way it goes, I assume we will get a published opinion out of this.  It is clearly a case of first impression with implications for probate practitioners facing similar situations.

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Case Trends and Technical Formalities

The topic for this post was triggered by my end of year clean up. During that process, I go through piles of things I think are interesting and have set aside. In doing so I pulled out five unpublished Court of Appeals cases that relate to the issue of the treatment of testamentary documents which fail to meet formalities (some woefully so) normally associated with their execution. This is far from an exhaustive review of the cases, but enough, I thought it was worth a discussion.

Following are the cases from my pile in order of most recent first:

In Re Gwendoline Louis Stillwell Trust. November 2012. Decedent/Settlor created a revocable trust. She also instructed a grandchild to deliver an envelope to the Trustee in the event of her death. In that envelope were several pages of handwritten, dated, but unwitnessed and unsigned instructions altering the disposition of her estate from what was provided in her Trust. The trial court held that the notes were amendments to the trust and that decision was upheld by the Court of Appeals.

The decision of both courts relied heavily on the language of the trust which granted the settlor the ability to modify the trust by written instrument delivered to the trustee. The fact that the document was not signed and not delivered until after death did not prove to be obstacles to the result. This case is a good example of what appears to be the expanding scope of the movement started by MCL 700.2503. It also suggests that trust agreements may be even more vulnerable than wills, notwithstanding the fact that the Michigan Trust Code offers no provision comparable to MCL 700.2503.

In Re Leach. October 2012. The trial court upheld certain documents which purportedly conveyed a remainder in real estate to X as wills. The trial court granted the relief on summary disposition. The Court of Appeals remanded for an evidentiary hearing on the issue of intent, and specifically requiring the Court to make a finding that the evidence could sustain the burden of proof: clear and convincing.

This case is interesting because it seems to suggest that summary disposition is not appropriate to make a finding in favor of a non-complying document under MCL 700.2503, but also because it addresses (briefly) the interplay between capacity and intent.

In Re Estate of Waller. November 2011. This case upholds a handwritten prenuptial agreement which was signed on the date of the marriage, and which included no disclosure of the parties’ respective assets or debts. The surviving spouse contested the validity of the document and lost.

The point here is again, a handwritten document is given full effect. It is also noteworthy in that it suggests that notwithstanding the perception of the family law bar, the formalities generally associated with the execution of a prenuptial agreement in order for it to be upheld are not so firm as they might believe.

In Re Daniel Mannes. October 2011. Decedent died leaving a will. She also had handwritten notes that altered the disposition of a certain investment Account. The handwritten notes were admitted as valid holographic wills but the interests of the beneficiaries of the notes were dismissed due to the timeliness of their action. The Court of Appeals reversed the trial court on the dismissal of the claim of the beneficiaries of the notes, upheld the notes as testamentary documents.

The case is bogged down in side issues about a pending divorce and timeliness of the action, so the Court of Appeals never addressed the factual basis for finding that the notes could be treated as holographic codicils (the party who would have contested that finding apparently dropped the issue on appeal). For the purposes of this post, the point is only that this is another case upholding notes as testamentary instruments.

Estate of Annette K. Boyle. September 2011. Decedent’s will specifically identified the Property in dispute as part of her estate and in fact Decedent held title to the property at the time of her death. The Property was listed on the estate inventory of the estate but with a notation that the decedent “agreed to transfer” this Property to Son. Residuary beneficiaries objected to this notation and to the Petition, filed by Son seeking the Court to order the PR to convey the property to him. Son had some good facts in his favor including testimony that the Decedent referred to the property as Son’s property, that the property tax statements were sent to Son, and that Son paid the taxes. Respondent residual beneficiaries argued that the will was unambiguous.

After a bench trial the property was awarded to Son under a constructive trust theory, and that decision was upheld by the Court of Appeals.

This case speaks to the broad reach of the remedy of “constructive trust” often, I suggest, underutilized in litigation. But the case also offers an example of the clear language of a testamentary document, in this instance a will, to be circumvented by facts that suggest that notwithstanding the plain language of the document, the intent of the Decedent was otherwise.

Conclusion. So what does it mean? As is often the case, bad news for planners is good news for litigators. Because these cases do not necessarily hinge on the statutory language of MCL 700.2503, they appear to merely reflect a trend away from holding fast to enforcement of clear testamentary documents, and allowing parties who believe a decedent intended something else to get a foot in the door. The remedy of constructive trust seems most well suited for these cases, as it is equitable and accordingly allows the party seeking deviation from the documents to avoid the traditional rules of ambiguity and extrinsic evidence.

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Sperm Donor Case

The Michigan Supreme Court addressed a curious issue, and provided an unsurprising result. Under Michigan law a child conceived after the death of the parent through artificial means is not a child of that parent when it comes to collecting Social Security benefits. The holding was made in Mattison v Social Security Commissioner. The United States Supreme Court had previously indicated that this question is a function of state law, and Michigan’s EPIC seems pretty clear on this point. However, it took a certified question from the Federal District Court in which these facts were in play in order to have the law established. If Michiganders want a different result they will have to amend EPIC.

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Holiday Presents from DC and Lansing

Lots to blog about in the aftermath of busy lame duck sessions in Washington and Lansing.  In order of importance:

  • The Fiscal Cliff Law.  Among the components of the so-called American Taxpayer Relief Act of 2012 (that’s original), is the permanent fixing of the federal estate and gift tax unified credit at $5 million per person ($10 million per married couple) indexed for inflation and with the continuance of portability of the unused credit of the first spouse to die.  The highest rate was increased to 40%.  Although this represents no real change in the law, it punctuates the reality that estate plans for the vast majority of Americans no longer require federal estate tax planning components.  Over the last 10-12 years we have seen the federal estate tax removed as consideration in planning for middle class clients.  Practitioners who have historically relied upon A/B trusts and federal estate tax avoidance of justification for the documents they promote are going to have to change their tune.  It’s over.


  • SOL on legal malpractice.  A long pursued objective of the Probate and Estate Planning Section became reality with the signing of Senate Bill 1296.  Now, a claim for legal malpractice expires at the earlier of 2 years after the claim accrues or six years from the date of the act or omission.  This is a big deal to estate planning attorneys who have documents that are created decades before they are tested. A big thanks to Senator Tonya Schuitmaker, who sponsored the bill (as well as her father, Harold, the esteemed probate attorney from Paw Paw); Mark Harter, the Section chair who finally got this done; and Becky Bechler, the Section’s lobbyist.  We are all forever in your debt.


  • Annuity Suitability.  Of all the seemingly well-meaning but largely pointless (sorry) “elder abuse” laws that have been floating around over the past couple years, the signing of Senate Bill 467 is probably the most significant.  The bill requires people selling annuities to establish the suitability of the product before making the sale.  In my humble opinion, inappropriate annuity sales to senior citizens is the primary source of financial exploitation of vulnerable adults – and has been for years.  This bill should provide the state, and civil litigators, more tools to go after the bad actors that operate in this arena.


  • Interstate Guardianships. Senate Bill 539 provides a process for a person appointed guardian in another state to become guardian in Michigan.  This law should be helpful in those few situations where this issue arises. 


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