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Ramblings on Race and Retirement Michigan-Style

I recently settled a case in Traverse City. The case was pretty involved and I spent a lot of time up there this summer.  As most of you probably appreciate, Traverse City is a retirement community, so most of the people there were my age or older – and dang near all of them were white. Made me think about how people retire in Michigan.

The way I figure it, Petoskey and Harbor Springs are the conservative (Republican) retirement enclaves (some BIG money up there). Traverse City seems more pedestrian, people with some money, but most of them living on pensions, retired educators, higher-ups in State government, that sort of thing.  More Democrats I would assume.

What was interesting to me is that these old NPR-types had created for themselves this world that features the indicia of urban hipsters – a very nice famer’s market, art and film festivals, even a so-called warehouse district – but which completely lacks racial diversity.

A little on-line research backed up my perceptions. According to the U.S. Census Bureau, Grand Traverse County is 1.2% black and 2.8% Hispanic.  Wow! So I wondered, how would the good people of Traverse City would explain their situation?  I came up with a couple possible responses:

  1. It’s not our fault that minorities don’t earn enough to retire to nice places like we do. We wish they did.
  2. Despite our sympathies/rhetoric, we want our retirement to be in a “safe” place -with that “safe” word carrying with it all the stereotypes and assumptions that plague our broader society.

And maybe it’s both. Or maybe they don’t really care and just want to be in a happy place with a population of fellow retirees who can support a lot of fancy restaurants, yoga studios, and golf courses.

And then my thinking turned to the more practical issue involved in having so many old people in one place: Who does all the dirty work?

When people move to a retirement community, especially one that is some distance from their homes, they sort of waive the right to impose on their children (especially female offspring) to take care of their needs as they age.

Turns out, this may be the fly in the ointment. At an event in Ann Arbor, I ran into a person who runs a homecare agency in Midland.  We talked about his business and my perceptions of Traverse City.  He told me he would love to expand into Traverse City, but there aren’t enough people up there who want jobs caring for the aged.  In other words, not enough low income workers.

I think it’s safe to assume that as those 60-75 year-olds who currently populate Traverse City move into their 80’s and 90’s, they are going to need help; help getting around, help keeping their meds straight, and help eating and toileting themselves. So then what?  They move back to urban areas? Or the long term care industry, and the racially diverse low-wage workers that go with it, move north?  It will be interesting to see.

These are just my ramblings. I have nothing against Traverse City or how the folks in that area choose to live.  I just thought it was interesting.

Share and Share Alike

This is an unpublished will construction case. To read In Re Estate of Eugenie Dietrich, click on the name.

In other posts (see for instance Who Gets the Grow Lamps?) we’ve seen the problems that arise when attorneys fail to use the precise legal terms of art. In this case, we see the problems that arise when lawyers toss in archaic legal language.

The will says: “To Peter Dietrich and Johann Dietrich, my sons, to be divided between them in equal shares, share and share alike.”

Turns out Johann predeceased Eugenie. So Peter says: “it’s all mine.”  Johann’s issue took exception.  The trial court agreed with Johann’s children, and ordered that they would take their deceased father’s share.  The Court of Appeals affirmed.

Michigan law strongly favors construction of estate planning instruments that vests the interests of predeceasing family members in their descendants. That’s what our “anti-lapse” rules are for.  See MCL 700.2603.  Those anti-lapse rules however can be rebutted with sufficient evidence of a contrary intent.  This case offers a discussion of class gifts versus individual gifts and the rules of construction that apply, with specific focus on the meaning of the term “share and share alike.”  A good read perhaps for younger lawyers developing their drafting style.

As for the phrase “share and share alike,” I think the lesson is: don’t use it. I’ve seen it many times but have never understood why it would be used when there are better ways of expressing a client’s intentions regarding what is to be done with property if a devisee predeceases.

Perhaps the attraction is that it sounds so fine – so high minded – “share and share alike.” Almost like a blessing- “go forth and prosper,” “live and let live,” “do unto others.” It has that kind of musical or poetic quality.  But our goal in drafting estate planning documents is not to be poetic, rather to be clear.

Meritless is Good. Frivolous would have been Better.

This is a Chalgian and Tripp case just handed down from the Court of Appeals. Unpublished.  Click here to read In Re Conservatorship of Ueal E. Patrick.

Ueal is a prominent business man in Jackson. He was involved in litigation.  Ueal’s health was declining and the stress of the litigation was making it worse.  In the context of working with him on a separate trust matter, we suggested that it might be beneficial to have his child Mark act as his conservator so that he (Mark) could handle the litigation.  Mark was already deeply involved in the management of the business, and very sophisticated in business matters.  In addition, predating all this was a power of attorney created by Ueal, appointing Mark as his agent, and nominating Mark as conservator should that become necessary.

A hearing was held at which several attorneys were present. The opposing parties did not contest that the appointment of a conservator was appropriate.  They simply opposed the appointment of Mark.  They presented no evidence, called no witnesses, merely made legal arguments.

On appeal, the appellant argued that the trial court erred in finding Ueal to be a person in need of a conservator, even though they stipulated to it in their pleadings and in court. They argued that the trial court erred by not requiring an independent medical exam be conducted to determine the amount of weight that should be given to Ueal’s nomination of Mark.  And they argued that Mark should not have been appointed because he had a conflict of interest with respect to the other matters being separately litigated.

The COA goes through each of appellant’s arguments, systematically pointing out the deficits in their reasoning. At various points the COA labels their arguments “abandoned,” “without merit,” and “meritless.” I beat up on our COA enough in this forum.  They got this one right.  I appreciate it.

Thanks to our John Mabley for doing an excellent job briefing the case and helping the COA clearly see the deficiencies in appellant’s positions.