One Court of Justice

Carlton and his wife Viola had a son and a daughter.  The daughter is the deceased mother of Carlton and Viola’s two granddaughters, Melady and Melinda.  Carlton and Viola executed identical wills, a revocable trust agreement, and an agreement to execute mutual wills, all of which reflected an estate plan to establish a trust for the benefit of Melady for life, with the remainder to the issue of Carlton and Viola.  Viola died first.  Subsequently, Carlton transferred title from assets that had been jointly owned by Carlton and Viola to be titled jointly in his and Melady’s name or to name Melady as beneficiary.  Carlton and Viola’s son and other granddaughter brought this action requesting that the probate court impose a constructive trust on certain assets in Melady and her husband’s control, alleging that Carlton transferred the assets in violation of the agreement to execute mutual wills.  After a hearing, the probate court found that the agreement to execute mutual wills was valid and binding, that nothing in the agreement restricted what the surviving party could do with the the joint assets, and that Carlton’s transfer of assets did not constitute a breach of the agreement.  The probate court granted summary disposition in favor of Melady and her husband, and in a per curiam opinion, In re Estate of Carlton J Leix, No. 291406, the Court of Appeals affirmed.  The Court of Appeals held that there was no implied limitation in an agreement to execute mutual wills that limits the surviving spouse’s ability to transfer assets as he or she pleases.

While Fred and Janet were married, they acquired two properties as tenants by the entirety. A tenancy by the entirety is a type of concurrent estate, unique to married couples, that includes the right of survivorship.  Although the probate court found that Frank was not a “surviving spouse” under the Estates and Protected Individuals Code (EPIC), MCL 700.2081(2)(e)(i), which states that a surviving spouse will not be treated as surviving the decedent if a breakdown in marriage is shown, the probate court determined that the statute does not destroy a tenancy by the entirety.  Thus, upon Janet’s death, the properties passed to Frank in fee simple absolute.  The personal representative of Janet’s estate brought this action to seek contribution from Frank for the expenses Janet incurred in maintaining the properties prior to her death.  The probate court granted Frank summary distribution on the estate’s contribution claim, and the Court of Appeals affirmed.  In a 4-3 opinion, the Michigan Supreme Court reversed.

In an issue of first impression, the Michigan Supreme Court held that the equitable doctrine of contribution can be applied between co-tenants by the entirety outside the context of a divorce or separate maintenance proceeding.  In an opinion authored by Justice Markman, and joined by Chief Justice Kelly, and Justices Cavanagh and Corrigan, the majority concluded that Frank had been unjustly enriched because he enjoyed sole ownership of the properties as a result of Janet’s maintenance payments, because they otherwise would have been subject to foreclosure. The majority concluded that the equitable doctrine of contribution could be applied in this context, given Frank’s willful absence in the 18 months prior to Janet’s death, the fact that Janet disinherited Frank and attempted to divest him of his interest in the properties, and the finding that Frank was not deemed a “surviving spouse” under EPIC. Read more »

On December 10, 2009, the Michigan Court of Appeals released its opinion in In re Estate of Rudell, No. 287330.  The Court held that a deed reciting consideration that was never paid may transfer property from parent to child, where the parent possessed donative intent.  The Court’s opinion may be found here.
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The Court of Appeals vacated its October 27, 2009 opinion in In re Estate of Graves, No. 286674, and issued a new opinion on December 3, 2009, to clarify that the attorney represented the personal representative of a minor, rather than the “estate” of the minor.  The substance of the opinion—in which the Court of Appeals affirmed the probate court’s decision to surcharge the attorney personally who failed to ensure that the funds were properly deposited in a fiduciary account for the minor’s benefit—is substantively unchanged.  The earlier post on that opinion can be found here.

On November 3, 2009, the Court of Appeals published its per curiam opinion in In re Estate of Lager, No. 276843, reversing the probate court’s order awarding the decedent’s personal savings plan (“PSP”) proceeds to his son.  In 1992, the decedent, who at the time was unmarried, designated his son as the primary beneficiary of his PSP.  The decedent married his surviving spouse in 1997, and died intestate in 2005.  On appeal, the Court of Appeals agreed with the surviving spouse’s argument that under ERISA, the decedent required her consent to uphold his election of his son as the beneficiary of the decedent’s PSP.  Further, because she never provided that consent, she is entitled to the PSP proceeds as a surviving spouse.  The Court of Appeals concluded that an election by an unmarried participant is not effective following a subsequent marriage if the new spouse does not provide consent to the election.

On October 27, 2009, the Michigan Court of Appeals issued a published opinion in In re Estate of Graves, No. 286674, authored by Judge Alton Davis, affirming summary disposition against an attorney for reimbursement to the estate, after his client, the court-appointed conservator, absconded with the funds.  The Court concluded that the probate court had subject matter jurisdiction over those claims because they concerned a conservatorship and sought return of funds to the estate.  It also held that the special fiduciary’s oral release of Attorney Ford did not bar the fiduciary’s subsequent  claims and that Ford violated state law by issuing the checks to the conservator in her personal name, rather than in her capacity as representative of the estate.
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On Friday, September 25, 2009, the Michigan Supreme Court granted leave to appeal in Hoover v. Michigan Mutual Insurance Co.  The Court ordered the parties to address whether under the No-Fault Act, the defendant is obligated to pay for various costs including increases in property taxes, standard utility bills, homeowner’s insurance, home maintenance costs, telephone bills, dumpster expenses, elevator inspection expenses, cleaning stipends paid to the accident victim’s mother for time spent cleaning the victim’s area of the home, and snow removal.  The Court further ordered the parties to address whether Griffith v. State Farm Mutual Automobile Insurance Co., 472 Mich. 521 (2005) was correctly decided.  In Griffith, the Court concluded that food consumed by an accident victim while being cared for at home are not recoverable as “allowable expenses” under the No-Fault Act.  The Coalition Protecting Auto No-Fault, an advocacy group including various health care provider groups and the Michigan Association of Justice, submitted an amicus brief.

The Court also vacated the Court of Appeals’ judgment Braverman v. McCormick (In re McCormick), and remanded the case to the probate court to require an itemized accounting of the amounts that the petitioner and the receiver were paid from the estate.   In People v. Lloyd, in lieu of granting leave to appeal, the Court remanded the case to the Court of Appeals to reconsider whether the trial court’s error in admitting a 911 call was constitutional, whether the court had applied the proper “harmless beyond a reasonable doubt” standard, and whether the error was in fact harmless beyond a reasonable doubt. 

Finally, the Court denied leave to appeal in four cases.

On July 30, 2009, the Michigan Supreme Court issued its opinion in Jackson v. Estate of Green, No. 136423.  The Court considered two issues:  whether an action to partition jointly owned real estate survives the death of the person who filed the action, and the point in time at which a cause of action accrues for a breach of verbal loan that did not include explicit terms for repayment.  The background and the Court of Appeals’ holdings are discussed here.  In plurality opinions, the Court affirmed the results reached by the Court of Appeals. Read more »

On Wednesday, June 3, 2009, the Michigan Supreme Court denied leave to appeal in 13 cases, closed the case of Grievance Administration v. Toca, No. 138947, because the respondent had not been aggrieved by a final order or dismissal, and remanded Bennett v. Mackinac Bridge Authority, No. 138204, to the Court of Appeals as on leave granted.  The Court also peremptorily reversed the Court of Appeals and reinstated the circuit court’s decisions in two cases.  These two cases are discussed in more detail after the jump.  Read more »

On April 2, 2009, the Michigan Supreme Court issued a per curiam opinion in In re Estate of Alice J. Raymond, No. 134461, as well as a concurrence and a dissent.  Raymond addresses the interpretation of a will’s residuary clause, which provided that the remainder of an estate would go to the testator’s and her deceased husband’s “brother[s] and sisters that survive me share and share alike or to the survivor or survivors thereof.”  Specifically, the Court considered whether that residuary clause allows only the surviving siblings of the testator to take under the will, or whether that clause also permits the surviving heirs of predeceased siblings to take.  The Court concluded that the testator’s predeceased siblings and their heirs are excluded under that residuary clause.  The opinion can be found here.

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On March 31, 2009, the Court of Appeals published a 2-1 opinion in In re Nestorovski Estate,  Case No. 271704, holding that probate disputes, including the determination of testamentary capacity, may be subject to binding arbitration.  The Court of Appeals’ decision is contrary to the Michigan Supreme Court’s decision in In re Meredith Estate, 275 Mich. 278, 266 N.W. 351 (1936), which held that testamentary capacity is not arbitrable.  The Court of Appeals majority based its decision on legislative, court rule, and common law developments that have occurred since the Michigan Supreme Court’s decision in In re Meredith Estate over 72 years ago.  In dissent, Judge Saad agreed that if the Michigan Supreme Court were to address the issue, it would overrule In re Meredith Estate.  But Judge Saad persuasively explained that the Court of Appeals has no authority to overturn decisions of the Michigan Supreme Court and consequently would have affirmed the trial court’s decision.  The Court of Appeals’ majority decision can be found here.  The dissent is here.