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Who Gets the Grow Lamps?

pot leaf

Thoughts on Plain English and Terms of Art

In recent years, lawyers – or at least legal academics – have pushed the concept that lawyers need to write using “plain English.” The movement is presumably designed to make the legal world more accessible to laypersons. Like many concepts that seem admirable on their face, I have often been troubled by a sense that this movement fails to acknowledge that what we do requires precise language that simply can’t be “dumbed down” for the sake of making our profession seem friendlier.

This recent unpublished Court of Appeals opinion (click here) arises out of a will that leaves the “residence” and “property” to A and the residue divided equally between A and B. The problem is that the decedent owned a house, connected to a farm.  And the decedent had an entrepreneurial bent.  Specifically, he had a business that made trailers, he had a business that did landscaping, and on that farm he had some weed (E I E I O) – that is, a business that grew medical marijuana.  Each of these businesses had assets related to those businesses, all located on the property at issue.

So problems arose in interpreting the document. Residence is a clear term of art, meaning the place one resided.  But did it include the barn and outhouses as well?  How many acres went with the house?  And property is an even more comprehensive term of art.  Did the gift of property mean the personal property in the house? The farmland? The business assets?

Residence and Property are important legal terms of art. They are used here as if the drafting attorney is unaware of their precise legal meaning – that is, they are used as if the common meaning would have legal effect.

While most of us can probably agree that archaic legal words like “whereby” and “heretofore” may be unnecessary, the precise use of language, and an awareness of the legal meaning of legal terms remains critical to good legal work.

The Court of Appeals correctly holds that the will is ambiguous, and hence a trial is needed to introduce extrinsic evidence so that the trial court can try and determine what the decedent thought those words meant when the will was prepared; causing litigation wholly unnecessary had the drafting attorney simply been more precise.

The case is a good reminder that “plain English” is often a recipe for disaster in legal documents, and a good read for attorneys – particularly younger lawyers – who are looking to develop their skills in drafting estate planning documents – and any legal documents for that matter.


Estate Recovery Percolates in COA

In yet another unpublished Court of Appeals decision on the topic of estate recovery, the COA upholds a result previously announced in the Keyes case (discussed in prior posts). This case is one in a string of cases dealing with the timing that a Medicaid beneficiary received notice of the State’s estate recovery program, and the argument that the program as implemented violates constitutional due process rights – an argument that has been rejected by the appellate court.  To read the case, click here.

All is not lost for estate recovery zealots; the Michigan Supreme Court has signaled that it is willing to look at some issues related to the implementation of the estate recovery program. More on that later.

Show Me the Money


There’s a new published probate court case arising out of two matters in Jackson County. The case holds that if you don’t have any money, and even if you are on public benefits, you still have to pay an inventory fee so long as the estate has resources – but maybe not the filing fee. Not that interesting (to me), but it is a published probate opinion, so for what it’s worth, click here to read the case.

Meaty Morris Matter Unfortunately Unpublished

The Court of Appeals recently released its opinion in the Estate of Stanley Morris. Click on the name to read the case.

There’s a lot here, and a lot of what, in my opinion, is new law or at least clarifications. Someone put some time into researching and writing this opinion, and I will try to do it justice with my analysis.

The Card v the Contract

The case is about whether the money in a bank account that Dad made joint with Daughter, and which Daughter drained on her own expenses during his life, can be recouped by the Estate as misappropriated funds.

The trial court saw this is a “convenience account” case. It ruled that the Executor of the Estate failed to provide evidence to overcome the burden it had to show that when the account was made joint, Dad intended the Daughter to obtain all the rights of an owner, and therefore was entitled to withdraw all the funds.

However, the COA points out that no evidence of the creation of the joint account was entered into evidence at trial, only that the Daughter’s name began appearing on the account at some point prior to her withdrawals. The COA further explains that while it appears this was accomplished when Daughter signed a signature card (which was not admitted as evidence) adding her name to the account, a signature card is not the same as an account contract that conforms with the statutory requirements for a joint account with rights of survivorship.  Accordingly, the COA explains, the trial court erred in applying the statutory presumption and that the trial court must revisit the issue and analyze the case under the theories of conversion and unjust enrichment (constructive trust).


The COA also looked at statements of the deceased father which were introduced at trial, to determine whether the statements were admissible in light of the fact that they were made subsequent to the creation of the joint account.   While statements of “intent” provide an exception to hearsay exclusion rules, case law has long held that in joint account cases, statements of the original owner’s intentions made subsequent to the creation of the account are inadmissible.  Here however the COA held that these statements could be considered for the reason that the party now seeking to exclude them had originally solicited similar testimony and did not object when the testimony it now challenged was offered by witnesses for the opposing party.  Hearsay issues in probate litigation matters are as tricky as they come.  The statements of dead people are often the best evidence of what was intended, but getting those statements into the record requires careful strategizing, if it can be accomplished at all. Hearsay issues should be outlined in advance of trial, with a plan for admitting the beneficial statements, and arguments for excluding those that hurt your case.  The lesson here for parties involved in these cases is to tread carefully, and make sure that your own enthusiasm in soliciting testimony doesn’t come back to bite you.


This is a lengthy case, but the analysis provided is excellent, and worth a read for anyone involved in probate litigation. If nothing else it provides a clear guide for the factual and legal basis involved in litigating joint account cases – making a clear distinction as to when the presumption of survivorship rights applies, when it does not, and explaining the legal theories that remain when the statutory rules are not in play.

Obviously, I think this should be a published case. Unfortunately, by the time I saw the opinion and contacted the attorneys involved (who would have standing to make such a request), the deadline for requesting publication had passed.  Shout out to Troy Attorney Joe Dadich and Redford Attorney Murray Muscat for a well litigated matter. Best of luck to each of you on remand.