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Capacity Case Illustrates Witness Weight

This unpublished opinion provides an opportunity to discuss the types of witnesses that are often involved in lack of capacity and undue influence cases, and how they are weighed at the trial level.

The case of is called In Re Estate of Aurelia Rokosky (click on the name to read the case).

Aurelia lived alone on Grosse Ile. She apparently had no spouse or children.  But she had a friend who lived nearby until 1994 when this friend moved to Portland, Oregon.  In 1976 Aurelia prepared a will leaving everything to this Portland friend.

In 2008, when Aurelia was 86, she developed a new friendship with a person in Michigan. This Michigan friend helped Aurelia with her shopping and housework.  In 2010, this Michigan friend began helping Aurelia with her bill payment and finances.

Aurelia also had a neighbor (“Neighbor Bill”) with whom she had a good relationship until mid-2010. Before their friendship broke off, Neighbor Bill observed that Aurelia suffered from significant confusion, that she was unable, for instance, to operate her television, and that she repeated herself frequently. Their relationship ended, Neighbor Bill claimed, because Aurelia became paranoid.  At one point in late 2010, Neighbor Bill called the local police department because he was afraid that Aurelia was not safe living alone, but the police found her home and living situation to be in reasonable order.

On January 24, 2011, Aurelia saw a lawyer and had a will prepared leaving everything to the Michigan friend. The lawyer testified that she was clear and coherent at their meeting, and that she had testamentary capacity.

That same day, when Aurelia arrived home, she called Neighbor Bill several times, each time in an agitated state, and each time explaining that she had arranged for her estate to pass to the Michigan neighbor at her death.

A few days later, Neighbor Bill and others who knew Aurelia became concerned that they had not heard from or seen Aurelia. The police were called.  Aurelia was found in her home in her bathtub fully clothed.  It is unclear how long she had been in the tub, and she was taken to a hospital where a doctor evaluated her cognition and deemed her to be “profoundly confused.”

Aurelia was discharged from the hospital to a long term care facility where she lived the remainder of her life and died in August, 2013.

Also, it is important to note that in September 2011, Aurelia met with a second lawyer and executed a ladybird deed leaving her home to Michigan friend at her death. That deed was deemed invalid, and that decision was not appealed.  But the second lawyer also testified that as of September 2011, when Aurelia met with him, she had testamentary capacity.

And finally, the Portland friend, in contesting the validity of the will, employed an expert witness, a geriatric psychiatrist, who reviewed the Aurelia’s medical records and opined that Aurelia lacked testamentary capacity on January 24, 2011 (the date of the will) and for every day thereafter.

After receiving all of this testimony, the trial court admitted the 2011 as valid on summary disposition, and the Portland friend appealed.

So, to sum it up, besides the presumably self-serving testimony of the parties themselves:

  • There are two lawyers who met with Aurelia and who testified that Aurelia had testamentary capacity in January 2011 and in September 2011.
  • There is a police report that indicates that Aurelia’s home was reasonably maintained in mid-2010.
  • There is an uninterested fact witness, Neighbor Bill, who testified as to Aurelia having clear signs of cognitive impairment before the 2011 will was executed, and that Aurelia became severely agitated and confused on the very date she signed the will, leading to hospitalization a few days later.
  • There is the evidence that the Michigan friend, a fact witness who seeks to have the will upheld, cannot dispute, which is that she was helping Aurelia with her daily activities, including her finances, before the will was signed.
  • There is a medical opinion from four days after the will was signed, when Aurelia was in the hospital, that she was demented and severely confused.
  • There is an expert opinion that she lacked testamentary capacity on the date the will was signed.

Indeed it is difficult to understand how a trial judge would think that, with all this evidence, this case could be decided on summary disposition. And you will not be surprised to learn that the Court of Appeals reversed that order and remanded the case for trial.  But this case illustrates some important points about how these cases can be viewed at the trial court level, and what witnesses carry the most weight, including:

(1) Trial judges often place great weight on the testimony of the lawyers they know. Capacity is, after all, a legal question and lawyers who regularly prepare estate plans are considered experts in evaluating whether their clients meet the standards of testamentary capacity.

(2) Capacity is presumed. The burden is on the contestant to overcome the presumption of capacity.  In any case where there is a lawyer who prepared the document, this presumption and the testimony of an experienced estate planning attorney, carries great weight.

(3) Testamentary capacity is a low standard.

(4) The “lucid moment” concept is far from dead. Even though Aurelia was deemed incompetent only a few days after the execution of the will, and even though she spent those few intervening days in a confused and agitated state, and even though there is ample evidence of age-related cognitive decline even before the will was signed, the trial judge presumably had no problem concluding that she was clear and coherent at the moment she signed the will, as her attorney testified.

These are the types of witnesses that often exist in lack of capacity/undue influence cases. What we can take away from this example, I think, is that challenging documents prepared by an experienced lawyer is tough sledding, but can be accomplished.  As in this case, expert opinions have become standard practice, and are often critical to surviving summary disposition.  Solid testimony from an uninterested fact witness can also be very valuable.  And, as I have suggested before, surviving summary disposition is often the first objective.  When a case is heading to a jury, the parties each face significant risk and the possibility of settlement increases accordingly.

The Awesome Power of Constructive Trust

 

Mom made the house joint with son, rights of survivorship. Now Mom, in her demented state, tells the court that, when she did it, she thought her son would share the house with his siblings after she died.  The court uses that testimony to void the deed, citing the equitable remedy of constructive trust.  The Court of Appeals upholds that decision.

This new unpublished case is In Re Guardianship and Conservatorship of Dorothy Redd (click on the name to read the case).  You might recognize the name.  This is a second appeal arising from the same file.  The first resulted in a published decision, and is addressed in my prior post Seeing Redd (click on the name to read that prior post), a case which offers an important rule about fiduciary removal for interference with family relations.

Constructive Trust is a remedy, which also can be pled as a cause of action. I plead it all the time.  To me, constructive trust is the Hail Mary of probate court litigation.  In the grey world of family exploitation cases, if all else fails, ask the court “to do the right thing.”  Who knows, it might just work?  It worked in this case.

Let’s review:

When Mom was competent, she deeded the house to herself and her son as joint tenants with rights of survivorship. Now she says that at the time, her express intent was that when her son received the property at her death, that he would share the proceeds with his other siblings.  There is apparently no, or insufficient, evidence to attack the deed for lack of capacity, undue influence or duress.  And there is apparently also no, or insufficient, evidence to impose an oral trust on the property (that is, no evidence that son made representations to mom that caused her to believe he was accepting the deed based on the agreement that he would share the proceeds with his siblings).

But the court decided that it simply wouldn’t be fair for son to keep the house, and voided the deed by exercising its equitable powers of constructive trust.

The Outer Bounds of Equity

Even in the wide-open range of equity, constructive trust is an anomaly, seemingly untethered by any evidentiary requirement.

It’s one thing to invoke equity by saying: “I took care of the old geezer for twenty years based on the promise that I would get compensated from his estate, and I wouldn’t have continued to do the work if I had known that he was leaving me nothing.” In those cases, the fact that the contract wasn’t in writing, or the terms were uncertain, can be remedied through equity (quantum meruit or unjust enrichment).  That’s equity, but at least there are some rules.  In those cases, the claimant has to prove that they would not have provided the care ‘but for’ the promise of compensation.

Constructive Trust doesn’t require anything so firm. It simply requires convincing the trial court that the outcome isn’t fair.  The leading case on constructive trust is the 1958 case of Kent v Klein, 352 Mich 652, 656; 91 NW2d 11. Kent is cited extensively in this Redd case, and those quotes demonstrate just how loose the parameters are:

A constructive trust may be imposed whenever “the circumstances under which property was acquired make it inequitable that it should be retained by him who holds the legal title. Constructive trusts have been said to arise through the application of the doctrine of equitable estoppel, or under the broad doctrine that equity regards and treats as done what in good conscience ought to be done.”

As Spiderman’s uncle once said: “With great power comes great responsibility.”  So, for argument’s sake, let’s read between the lines of this decision.

In the first Redd case, this same son was removed as guardian because the trial court found that he was actively undermining the relationships between his demented mother and her other children, his siblings.  So, he was already the bad guy in this court when the questions at issue in this appeal arose.  In this appeal, his accountings are disallowed, he is removed as beneficiary of a life insurance policy his mother established on her life, and the deed leaving him her home is voided.

One explanation is that he really is the bad guy and had a hand in the getting mom to execute the deed. But if those were the facts, as discussed above, the contestants would have had legal grounds to attack the deed: duress and undue influence.  That evidence, presumably, didn’t exist.

Remember also that the testimony about what mom believed or intended at the time she created the deed, comes from a demented woman who is no doubt being influenced by the people around her; and since her son’s removal as guardian, should we assume those people are the other siblings? How much weight should be given to her current memories of what she did some years earlier?  Also, the COA opinion mentions only in an off-handed way that, in explaining her decision to execute the deed, mom states that at least part of her motivation was that her son had made improvements to the house.

So, the other possible perspective is that maybe son is the good kid. Maybe his siblings didn’t have a lot to do with mom, but lawyered up when they realized they were getting cut out.  Maybe he had reasons for his keeping the other kids away from mom, although perhaps he was too strident in how he did it.  Maybe he is the only one who cared.  I don’t know.  But I suspect the story is richer than this opinion reveals.

Conclusion

I’m not saying this case is wrongly decided, I’m just saying it’s grey – it’s always grey; and unleashing unfettered equitable powers in these cases is dicey.

Speaking of which, I have an article coming out on this very topic.  It will be in the February edition of the Michigan Bar Journal.  It’s called: Best Practices for Family Exploitation Cases.  If you are so inclined, give it a read, and I hope you find it worthwhile.

Great Facts and Experts Can’t Survive Summary

An unpublished opinion today that looks at the question of when expert opinions are sufficient to create a question of fact, versus when they remain mere speculation; in the context of a motion for summary disposition.

In In Re Jeannine A. Palazzo Irrevocable Trust (click on the name to read the case), the attorney/trustee failed to inform beneficiaries of his activities in relation to an irrevocable life insurance trust (an “ILIT”) established for their benefit by an aunt. During the years leading up to the aunt/settlor’s death, the liquidity in the ILIT was depleted to the point of near insolvency.  This prompted the attorney/trustee to liquidate the policy for $36,000 and by doing so give up the $500,000 death benefit. As it turns out, he did this just days before the death of the aunt/settlor.

The successor trustee sued attorney/trustee for breach, and presented testimony of an expert estate planning lawyer and an accountant, both of whom opined that had the attorney/trustee performed his fiduciary duties with respect to informing the beneficiaries, the beneficiaries could have taken steps to protect their interests and potentially preserved the policy so as to receive some or all of the death benefit.

An Interesting Question

The trustee/attorney moved for summary disposition in the trial court and prevailed on the argument that merely speculating that the beneficiaries could have or might have taken steps to alter the outcome is insufficient, if you don’t explain what they would have done and when.

The Court of Appeals affirmed the trial court, adopting the proposition that merely speculating that something could have been done is insufficient to create a question of fact sufficient to survive summary disposition.

An Uncomfortable Result

A central premise to trust law is that beneficiaries are empowered to protect their interests by being provided information. A trustee protects itself by providing that information.  When a trustee fails to provide the required information, the law holds the trustee liable for the resulting damages and does not allow the trustee the protection of time barriers to claims that would otherwise arise.

For a court to conclude that although a trustee breached its duties by failing to provide the required information, but that the trustee is nonetheless absolved of liability on summary disposition even where experts have opined that something could have been done had the information been provided, just feels wrong.

Conclusion

Bottom line is the beneficiaries lost on summary because they did not specifically state what could have been done to alter the outcome had the missing information been provided. While that seems like a fine line to draw; that is the line that worked in this case, and a line litigators will want to remember when they need to make the same distinction in future matters.

They say it is an ill-wind that blows no one good, and no doubt there is one trustee/attorney who will be full of Thanksgiving today.

Opinion puts Fees of Former PR’s (and their Attorneys) at Risk

If you are a lawyer who handles probate estate administration, you will want to take note of this unpublished Court of Appeals opinion. The gravamen of this decision is that a claim for fees by a personal representative who has been removed or who resigns, will be barred unless it is filed within four months of their removal or resignation; and the same would be true of the fees for legal services or other professional services provided to the former PR.

In In Re Estate of Jack Edward Busselle (click on name to read the case), the Court of Appeals construes the provisions of MCL 700.3803 (click here to read the statute) that address time limits to claims that arise after the decedent’s death.

MCL 700.3803(2) says that such claims must be filed within 4 months, but MCL 700.3803(3)(c) says that time limit does not apply to:

(c) Collection of compensation for services rendered and reimbursement of expenses advanced by the personal representative or by an attorney, auditor, investment adviser, or other specialized agent or assistant for the personal representative of the estate.

What this case holds is that the term “the personal representative” as used in MCL 700.3803(3)(c) does not include a former personal representative, and therefore a former personal representative has four months from the date of their removal or resignation to file a claim for services. This statutory construction would then impose the same time limit on claims from professionals, including lawyers, who did work for the former PR.

This case should probably be published since it appears to be an issue of first impression and relies on no prior authority for this interpretation of the law. The COA’s interpretation seems to present a malpractice trap for lawyers who have clients who resign or are removed as PR and who take more than four months to file a claim  for their client’s fees.  The law as construed in this case also would present a time bar for lawyers who represent clients who resign or are removed and PR, and who do not file a claim for their own fees within the four month window.

In any event, it has been a while since I have seen my old friend Tom Trainer who acted as successor PR in this matter, and who prevailed as Appellee in this case. Nice to know Tom is still out there stirring things up.

Unpublished Decision Demonstrates Difficulties Inherent in Setting Aside Settlements

The process by which this issue arises is somewhat confusing, but basically the facts are that:

Parent has two children. Original trust leaves residue to his children 50-50; and if either child predeceases, the share of predeceased child goes to the descendants of the deceased child.

One child dies and then the parent becomes demented, subject to guardianship and conservatorship. Conservator petitions the trial court for instruction on the validity of a trust amendment which may or may not have been signed. No signed copy is found. The purported amendment was made after the death of the child, and if valid, would leave the entire residue to the surviving child and nothing to the descendants of the deceased child.

Matter is mediated and the surviving child and descendants of the deceased child reach an agreement regarding the division of the residue, which agreement is approved by the trial court.

Subsequently, the child who would have received everything under the purported trust amendment announces that he has found the signed amendment, and seeks to set aside the order approving the settlement pursuant to MCR 2.612(C)(1).

The trial court denies the motion to set aside the order, and the Court of Appeals affirms.

In Re Frank M. Lambrecht, Jr. Trust (click on name to read the case) is unpublished, but I think it does a reasonably good job looking at what it takes to set aside a settlement agreement, and probably gets the right result in what is no doubt a very close case.

There are several grounds on which the agreement (or more accurately, the court order adopting the agreement) is challenged, all of which come under MCR 2.612(C)(1).

MCR 2.612(C)(1)(a) – Mutual Mistake.  Court of Appeals holds that while it may well have been a mutual mistake of a material fact that no signed amendment existed, the parties all knew that it was possible that one might subsequently be found, and that possibility was presumably factored into the value they placed on the case when they settled.  So, unlike some other types of orders, an order approving a settlement agreement has already factored in the possibility of this type of mistake = no relief here.

MCR 2.612(C)(1)(b) – After Discovered Material Evidence.  The Court of Appeals says that the child challenging the settlement agreement is correct that the discovery of the signed amendment would meet most of the requirements necessary to obtain relief under MCR 2.612(C)(1)(b), but on these facts this contesting child fails to meet the burden of showing that it could not have been found with “reasonable diligence.”   The child seeking relief says the signed amendment was found in his parent’s desk drawer, but that he chose not to look there while his parent was alive, out of respect for that parent’s privacy.  Basically, his deference on this point may have been admirable but does not obviate his obligation to use due diligence.  There is no question he had access, and presumably the desk drawer would have been an obvious place to look.  So that won’t work.

MCR 2.612(C)(1)(e) and (f) – No Longer Equitable and Other Grounds for Relief.  The Court of Appeals notes that the settlement was not solely based on the fact that a signed amendment was missing. Rather, the settlement negotiations included other issues, including whether, even if the signed amendment were found, the amendment would be set aside for lack of capacity or undue influence.  In light of the other variables in play during the settlement process, it could not be said that the resulting agreement is no longer fair.

Conclusion. This case neatly presents the issue of how and why an order approving a settlement agreement is different from other types of court orders when it comes to seeking relief under MCR 2.612(C)(1); and neatly applies the law to facts that make the decision a close call on several grounds.

 

COA on Brody Trust Remand: We Were Both Right

In what should be the last chapter in the Rhea Brody Trust saga, the Court of Appeals has released its decision resulting from a Michigan Supreme Court Order remanding the case to the COA.  As previously discussed here, confusion was created by the first Brody Trust decision (“Brody I”) regarding whether a child/beneficiary has standing to initiate litigation involving a parent’s revocable trust regardless of whether the parent/settlor is still competent.

To read the new Brody case, click here.

To read prior posts on this case, click here and here.

In Brody Trust I, the COA held that a child who is a beneficiary of a revocable trust may have standing to initiate litigation regarding the administration of a revocable trust, regardless of whether the parent/settlor is competent. The COA relied upon the definition of an “interested person” as set forth in MCL 700.1105(c).  That decision shocked the probate community, and caused the probate section of the state bar to file an amicus brief asking the Michigan Supreme Court to reverse that holding.  [The probate section did not ask for a reversal of the outcome of Brody I, because based on the facts of the case, and specifically the fact that the settlor was in fact incompetent, and the trustee was also the settlor’s agent under a power of attorney, standing would exist under MCL 700.7603(2).]  Click on the statute to read those laws.

The MSC accepted briefs on appeal, but rather than hear and decide the case, the MSC simply vacated controversial portions of Brody I and remanded it to the COA for a new and improved opinion.

Now, the new opinion (“Brody II”) has been issued.  In it, the COA acknowledges that the probate section was correct in asserting that MCL 700.7603(2) would apply in this case and that the application of that statute would provide standing to the petitioner/child/beneficiary. But – and it’s kind of a big but – they say that they were not wrong in their application of MCL 700.1105(c).

Litigators Rejoice?

Brody II is published, so it is the law. What this means, it seems, is that under MCL 700.1105(c), depending on the facts and circumstances of the case, a probate court could find that a child or beneficiary of a revocable trust might have standing to initiate litigation regarding the administration of a revocable trust even where the settlor remains competent and could amend the trust and cut out complaining child/beneficiary.  Is this a boon for litigators?  Possibly, but I think probably not.  Probate courts have discretion under the second sentence of 700.1105(c) to determine who would be an interested person in any particular proceeding, and that decision is based on the “particular purposes of, and matter involved in” the litigation.  Presumably, it would be a rare set of circumstances where a trial court would want to exercise their discretion to allow litigation by an aggrieved child or beneficiary in cases where the settlor can speak for themselves.  Presumably also, competent settlors who are offended by having their children and/or other beneficiaries initiate litigation, will in fact amend their documents and resolve the issue that way.

Conclusion

So, the COA missed the obvious way to resolve this case in Brody I, and they acknowledge that Brody II. But they don’t just leave it at that.  By taking the “we were both right” approach, they allow for the possibility of future litigation initiated by children or beneficiaries of revocable trusts while the settlor is competent.

Phone App “document” is a Valid Will in Michigan

It happened and it’s published.

The Michigan Court of Appeals held, in a published decision, that a paragraph posted by a decedent on his phone is a valid will under Michigan law, and specifically, MCL 700.2503.

We’ve discussed Michigan’s uniquely liberal law regarding instruments intended to be wills before. See, for instance, Section 2503 Grows Up (click on name).

In this case, Duane Horton wrote a note in his journal stating that his testamentary wishes could be found on his phone app. They looked and they found it.  The trial court admitted the electronic expression as the decedent’s will under MCL 700.2503. The Court of Appeals affirmed.

Click here to read In re Estate of Duane Francis Horton, II

It’s an important case as it further fleshes out the impact of Michigan’s cutting edge law.

First, it dismisses the number one misconception about Section 2503, which is that it is intended only to fix “minor, technical deficiencies” in documents that would otherwise be admissible as holographic wills or otherwise. The COA holds that the statute doesn’t say that, and doesn’t mean that.  Rather Section 2503 is a stand alone, separate process for admitting testamentary expressions which does not require any formality, only clear and convincing evidence of intent.

Equally important, the case stands for the proposition that an electronic document is a “document” for the purposes of this statute.

These are powerful developments in probate law, and, for better or worse, Michigan seems to be on the cutting edge. Fun issues, fun times.

 

MSC Fixes Brody Trust

UPDATE:  The Court of Appeals issued a new opinion on August 7, 2018.  The blog post on that opinion can be read by clicking here.

As previously discussed on this blogsite, the problem with this Rhea Brody Trust case is that the Court of Appeals misconstrued the standing provisions of the Michigan Trust Code in concluding that a child/beneficiary of the settlor has standing to initiate a trust proceeding while the parent/settlor is alive. [See Remainder Beneficiary of Revocable Trust has Standing to Sue Trustee for Breach]. Besides being wrong, the COA’s conclusion was unnecessary because under the facts of this case (including the fact that the settlor was incompetent), the offended party had standing under the Michigan Trust Code.

As with the Brody conservatorship case, the COA decision was appealed to the Michigan Supreme Court and an amicus brief was filed by the Probate Section of the State Bar. As with the Brody conservatorship matter, the MSC received the amicus brief, fixed the problem, and then denied leave as no longer necessary.  However, in this matter, the MSC actually ordered part of the COA’s decision vacated and remanded the matter to the COA to correct their analysis.  So presumably there will be another, more enlightened, COA decision forthcoming.

Click here to read the MSC Order.

Beneficial Interest in Trust Enough for PRE

In this published decision, the Michigan Court of Appeals goes to great lengths to conclude that a person who lives in a house that is owned by an irrevocable trust, which trust provides this person with a right of occupancy, is an “owner” of the house for the purposes of qualifying for the personal residence exclusion with respect to their property taxes.

Click here to read Breakey v Department of Treasury.

 

COA Sets the Record Straight on Priorities

This new published Court of Appeals opinion shouldn’t surprise anyone. The COA holds that where a professional guardian/conservator resigns, and the only adult child of the ward petitions to be appointed guardian and conservator, the probate court cannot appoint a new professional guardian and conservator unless it makes a finding that the child is unsuitable.  That’s because the child has priority to be appointed.  The fact that the probate judge by-passed the child and appointed a new professional fiduciary without such evidence was reversible error.

Click here to read In Re Guardianship/Conservatorship of Harold William Gerstler.

The facts are kind of fun: a devious Aunt, a lazy guardian ad litem; but in the end the COA simply reads the statutes regarding priority of appointments and applies them to the facts.

The only thing curious about this case is that it is published. But perhaps the timing of this publication tells us something.  Perhaps, just maybe, the COA is trying to clean up the confusion left from the recently published (and revised and republished) Brody case which said that the statutory priorities were “merely a guide for the probate court’s exercise of discretion.”  [Check out the post “Better Than Nothing?” for a discussion of that case.]

Significantly, the Gerstler opinion also adopts the position that the standard of proof necessary to by-pass a person with priority is as stated in the Redd case: a preponderance. [Click here to read “Seeing Redd”.]

So, when the issue of appointment of either a guardian or conservator is in play, a party with priority is entitled to appointment unless it is shown by a preponderance of evidence that they are not suitable. That means a probate court has to have a hearing and consider evidence to make this decision. I, for one, am glad that’s clear.