In re Miller Osborne Perry Trust

831 N.W.2d 251, 299 Mich. App. 525
CourtMichigan Court of Appeals
DecidedFebruary 19, 2013
DocketDocket No. 309725
StatusPublished
Cited by27 cases

This text of 831 N.W.2d 251 (In re Miller Osborne Perry Trust) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Miller Osborne Perry Trust, 831 N.W.2d 251, 299 Mich. App. 525 (Mich. Ct. App. 2013).

Opinion

PER CURIAM.

Susan Perry, acting as the trustee for the Miller Osborne Perry Trust (the “Trust”), appeals as of right the probate court’s finding that Mark D. Perry’s suit for declaratory relief did not constitute a challenge to the Trust within the meaning of the Trust’s forfeiture clause — otherwise known as a no-contest clause. On appeal, Susan Perry argues that the probate court clearly erred because, after it found that Mark Perry would not have had probable cause to challenge the Trust within the meaning of MCL 700.7113, it had to find that his suit triggered the no-contest clause. As such, she further maintains, the probate court should have determined that Mark Perry forfeited his distributions under the Trust. Because we conclude that Mark Perry’s suit for declaratory relief did not constitute a challenge to the Trust as stated in the Trust’s no-contest clause, we affirm.

I. BASIC FACTS

Miller Osborne Perry established the Trust in January 1993. Susan Perry is Miller Perry’s daughter and Mark Perry’s aunt.

In November 2006, Miller Perry amended the Trust to give the majority of his estate to Susan Perry; he [528]*528established that 75 percent would go to Susan Perry, 12.5 percent to Mark Perry, and the remaining 12.5 percent would go to Mark Perry’s half-sister, Debra C. Pinedo. He also added § 4.4, which provided that any beneficiary who challenges the admission of the Trust to probate or any of the Trust’s provisions would forfeit his or her benefits under the Trust:

If any beneficiary under this trust or any heir of mine, or any person acting, with or without court approval, on behalf of a beneficiary or heir, shall challenge or contest the admission of this trust to probate, or challenge or contest any provision of this trust, the beneficiary or heir shall receive no portion of my estate, nor any benefits under this trust. However, it will not be a “challenge or contest” if my personal representative, trustee or a beneficiary seeks court interpretation of ambiguous or uncertain provisions in this trust.

Miller Perry died in March 2010, at 102 years of age.

After discovering evidence that his aunt may have had a questionable influence over Miller Perry during his final years, Mark Perry petitioned in the probate court for declaratory relief. Specifically, he asked the court to determine whether he had “probable cause” to challenge the Trust’s 2006 amendments under MCL 700.7113. In his petition, Mark Perry stated that his petition should “not... be construed as contesting the validity of the trust, but rather only seeks a declaratory judgment pursuant to MCR 2.605 on the existence of probable cause if [he] were to bring such an action.” (Italics added.)

In response to Mark Perry’s petition, Susan Perry denied that she had had an undue influence on her father. She also asked the probate court to hold that Mark Perry’s request for declaratory relief constituted a “contest” of the Trust under § 4.4, thus triggering the [529]*529no-contest clause. After a hearing on the issue, the probate court denied Mark Perry’s request for a declaratory judgment, but also determined that his petition was not a contest or challenge under § 4.4.

II. JURISDICTION

As a preliminary matter, we note that Mark Perry argues on appeal that Susan Perry is not an aggrieved party under MCR 7.203(A) because she appealed as the Trust’s trustee and, in that capacity, she did not suffer a concrete or particularized injury. See Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 290-291; 715 NW2d 846 (2006). For that reason, he maintains that this Court lacks jurisdiction to hear her appeal. It is not clear that Susan Perry appealed solely as the Trust’s trustee and not also in her personal capacity. In any event, because Susan Perry has a duty to ensure that the Trust is properly administered according to its terms and for the benefit of all its beneficiaries and she may be liable if she fails to protect the Trust’s assets, including as provided under the no-contest clause, MCL 700.7801, MCL 700.7812, MCL 700.7901, MCL 700.7902, we conclude that she has a sufficient pecuniary interest to meet the requirements stated under MCR 7.203(A).

III. THE NO-CONTEST CLAUSE

A. STANDARD OF REVIEW

This Court reviews de novo the proper interpretation of both statutes and trusts. In re Reisman Estate, 266 Mich App 522, 526; 702 NW2d 658 (2005). However, this Court reviews a trial court’s factual findings underlying its conclusions of law for clear error. MCR 2.613(C).

[530]*530B. ANALYSIS

No-contest clauses, such as that found under the Trust’s § 4.4, are generally valid and enforceable. See Farr v Whitefield, 322 Mich 275, 280; 33 NW2d 791 (1948). However, the Legislature in 2009 PA 46, effective April 1, 2010, amended the Michigan Trust Code to limit the scope of no-contest clauses: “A provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.” MCL 700.7113. The probate court found that Mark Perry would not have probable cause under that statute to challenge the validity of the Trust’s amendments. Accordingly, if Mark Perry’s request for declaratory relief constituted a challenge to the Trust, as defined under § 4.4, then Mark Perry forfeited his interest under the Trust by challenging it without probable cause to do so. However, we do not agree that his petition for declaratory relief constituted a challenge to the Trust under §4.4.

When interpreting the meaning of a trust, this Court must ascertain and abide by the intent of the settlor. In re Kostin Estate, 278 Mich App 47, 53; 748 NW2d 583 (2008). We must look to the words of the trust itself. Id. Courts must, however, construe no-contest clauses strictly. See Saier v Saier, 366 Mich 515, 520; 115 NW2d 279 (1962). Thus, this Court may forfeit Mark Perry’s distributions only if his actions “come strictly within the express terms” of the no-contest clause at issue. Id. (quotation marks, citation, and emphasis omitted).

Under § 4.4, Miller Perry did not provide that a beneficiary would forfeit his or her rights under the Trust if the beneficiary filed any legal action — however [531]*531tangentially related to the Trust. Instead, he provided that only a beneficiary who contests or challenges the Trust’s admission to probate or who challenges a provision will forfeit his or her rights under the Trust.

In his suit, Mark Perry stated that he was not challenging the Trust itself. Moreover, in his allegations, he did not ask the probate court to pass judgment on any term within the Trust, did not allege that the no-contest clause was actually invalid, and did not seek monetary relief. He did, however, ask the probate court in his prayer for relief to order that “the existence of probable cause renders unenforceable the [no-contest] clause.” Because he stated in the body of his petition that he was not actually challenging the trust — and the no-contest clause is a provision in the trust — the probate court would have no authority to grant the requested relief.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Douglas M Ladney 1992 Trust
Michigan Court of Appeals, 2025
In Re Pawloski Minors
Michigan Court of Appeals, 2025
20241114_C366701_60_366701.Opn.Pdf
Michigan Court of Appeals, 2024
Jones v. Jones
Massachusetts Appeals Court, 2023
In Re Raymond J Rech Living Trust
Michigan Court of Appeals, 2022
in Re Jacobson Estate
Michigan Court of Appeals, 2020
in Re Stephenson Family Trust
Michigan Court of Appeals, 2020
Linda Dice v. Esther G Bennett Revocable Trust
Michigan Court of Appeals, 2019
in Re Robert E Whitton Revocable Trust
Michigan Court of Appeals, 2018
in Re Estate and Trust of Robert E Whitton
Michigan Court of Appeals, 2018
in Re Richard Liba Revocable Living Trust
Michigan Court of Appeals, 2018
in Re Maurice J Veilleux Trust
Michigan Court of Appeals, 2018
in Re Leon E Barrenger Trust
Michigan Court of Appeals, 2017
in Re Perry Family Living Trust
Michigan Court of Appeals, 2016
in Re Brown Estate
Michigan Court of Appeals, 2015
Bill & Dena Brown Trust v. Garcia
312 Mich. App. 684 (Michigan Court of Appeals, 2015)
in Re Hamady Trust
Michigan Court of Appeals, 2015
in Re Hummer Estate
Michigan Court of Appeals, 2014

Cite This Page — Counsel Stack

Bluebook (online)
831 N.W.2d 251, 299 Mich. App. 525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-miller-osborne-perry-trust-michctapp-2013.