Every month I summarize the most important probate cases in Michigan. Now I publish my
summaries as a service to colleagues and friends. I hope you find these summaries useful and I am
always interested in hearing thoughts and opinions on these cases.
PROBATE LAW CASE SUMMARY
BY:
Alan A. May
Alan May is a shareholder who is sought after for his experience in
guardianships, conservatorships, trusts, wills, forensic probate
issues and probate. He has written, published and lectured
extensively on these topics.
He was selected for inclusion in the 2007-2014 issues of Michigan
Super Lawyers magazine featuring the top 5% of attorneys in
Michigan and has been called by courts as an expert witness on
issues of fees and by both plaintiffs and defendants as an expert
witness in the area of probate and trust law. Mr. May maintains an
“AV” peer review rating with Martindale-Hubbell Law Directory,
the highest peer review rating for attorneys and he is listed in the
area of Probate Law among Martindale-Hubbell’s Preeminent
Lawyers. He has also been selected by his peers for inclusion in The
Best Lawyers in America® 2015 in the fields of Trusts and Estates
as well as Litigation – Trusts & Estates (Copyright 2014 by
Woodward/White, Inc., of SC). He has been included in the Best Lawyers listing since 2011.
He is a member of the Society of American Baseball Research (SABR).
For those interested in viewing previous Probate Law Case Summaries, go online to:
http://kkue.com/resources/probate-law-case-summaries/
DT:
April 20, 2015
RE:
In Re Alexandra Rae McMullen, Demi Marie McMullen, and Ashleigh Rose Butler
Irrevocable Trust
STATE OF MICHIGAN COURT OF APPEALS
BASEBALL STATS:
SPANISH TERMS
With all the great Latinos playing baseball today, I thought it might be good to give the reader
many of the terms that Latinos use in baseball just in case you sit close to the field.
“Deslizamiento” - Slide into a base
“Campocorto” - Shortstop
“Callejon de poder” - Power alley
“Caminata” - Base on balls
201 West Big Beaver, Suite 600, Troy, Michigan 48084 | Phone: 248.528.1111 | Fax: 248.528.5129 | www.kempklein.com
STATE OF MICHIGAN COURT OF APPEALS Case
–continued–
“Cambia” - Change up
“Corredor” - Runner
“Corredor Emergente” - Pinch runner
“Entrada” - Inning
“Envio” - Pitch
“Estafar” - Steal
“Lanzar” - To pitch
“Lanzador” - Pitcher
“Lanzamiento Franco” - Pitchout
“Lanzamiento Ropiente” - Curve Ball
“Lanzador Relevisa” - Relief Pitcher
“Vaya” - Homerun
REVIEW OF CASE:
Referenced Files:
Defense of Fiduciary
No Action if Breach and No Damages
Summary Disposition
Self-Dealing
Act as a trustee and place your own lien on the trust property to secure your loans, establish your
own company and compete against the company owned by the trust, fail to control trust property
and pay your second wife out of trust property and you are on your way to club fed, right? Wrong,
you win on summary disposition. Congratulations to the prevailing attorney.
When one lays out facts to support one’s actions, which cannot be rebutted, you will probably
prevail on summary disposition. The Court of Appeals in this case gives a good definition of the
standard of granting a summary disposition based on MCR 2/116(C)(10), “A mere possibility that
the claim might be supported by evidence at trial is insufficient.” Maiden v Rozwood, 461 Mich
109, 121 (1999).
Let us do as the Court of Appeals did and examine the three allegations made against the fiduciary
and see how the fiduciaries victory was achieved:
I.
Placing a Lien on Trust Property.
A.
Petitioner must show trustee was not entitled to lien the property.
B.
MCL 700.7709(2) allows a trustee to advance money.
C.
There was a pattern of loans to the business previous to the trustee being the
trustee.
D.
Without showing that the matter was totally illegitimate, the trustee is
allowed to collect the money on the personal lien.
2
STATE OF MICHIGAN COURT OF APPEALS Case
–continued–
E.
II.
III.
Therefore there was no breach.
Opening a Competing Business.
A.
Petitioner only showed that there were Articles of Incorporation.
B.
There was no evidence of a profit by the corporation.
C.
There was some evidence that no business was conducted.
D.
The trust business itself operated at a loss for many years.
Made Improper Payments Out of Trust.
A.
Court of Appeals stated that this was a breach of trust, however:
1.
No profit was made because of the breach and therefore there were
no damages.
2.
The fiduciary continued to guarantee the loans on the business of the
trust and paid out money for that purpose.
3.
The business never reimbursed respondents for the loan.
4.
The trust business would have been worth nothing if the
disbursements hadn’t been made (query: wouldn’t the trust business
have been worth the amounts of those money at least?).
5.
Damages are to restore the trust, and because the trust lacked any
value at the time of the breach, there was nothing to restore.
6.
It was only speculative that the trust would have been worth more if
there had been no breach.
In cases like this, the trick is to get a judge to listen and not look at the superficial allegations which
do appear to be wrongful.
AAM:kjd
Attachment
796978
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