I read with interest the article in the March/April issue about pre-death will contests. I too am a Michigan lawyer and also am a member of the ACTEC Litigation Committee.
I strongly believe that when the scrivener feels there will be a post-death challenge to the client’s estate plan, a pre-death validation of the client’s estate plan is the proper thing to attempt to accomplish. In Michigan it can be done and I have done it. It was years ago under our prior probate code (Revised Probate Code in effect from 1979 through April 1, 2000).
The way I did it was to use a trust as the principal estate planning document. The client was an unmarried elderly lady whose heirs (i.e., natural objects of her bounty) were nieces and nephews. She had seen what they had done as “presumptive heirs” of her unmarried sister and didn’t want them to do that to her. She had a lady friend who had a son that was taking care of the client and his mother. The client wanted the son to take care of her and she wanted to leave him her assets for doing so. That was accomplished in a simple direct proceeding. Michigan’s new probate code (Estate and Protected Individuals Act) has similar provisions as the act I used.
I had the client petition the court for the appointment of a conservator for her. That was permitted under Michigan law. Michigan’s current law also authorizes a court “either directly or through a conservator to create either a revocable or irrevocable trust that may extend beyond the disability or life of the protected individual.” The Reporter’s comment to the current law states that provision was “virtually identical to the prior act” (the one I used).
The client then had a trust prepared in the way she wanted it and it was presented to the court for approval. Notice was given to the heirs at law.
There was a contested hearing and the client testified as to exactly what she wanted. The judge then approved the trust. Everything worked out as planned and the client lived out her “golden years” in happiness knowing that her wishes would be carried out after her death.
Possibly more difficult post-death litigation was avoided by having the judge actually hear from and independently question the client as to what she wanted. I only had to put two witnesses on the stand—the client and the friend’s son who was to be the trustee. The nieces and nephews after hearing the client conceded. A lot of money was saved, which was available to take care of the client.
James H. LoPrete
LoPrete & Lyneis, P.C.
Bloomfield Hills, Michigan