Wills & Trusts


Issues: Challenge to the validity of the trust; Whether petitioners stated a cause of action sufficient to survive a motion for summary disposition under MCR 2.116(C)(8); Bailey v. Schaaf; MCR 2.116(G)(5); Gorman v. American Honda Motor Co.; Davis v. Detroit; ETT Ambulance Serv. Corp. v. Rockford Ambulance, Inc.; The Michigan Trust Code (MTC)(MCL 700.7101 et seq.); MCL 700.7402; MCL 700.7406; MRE 902(8); "Acknowledgment" defined; The Michigan Notary Public Act (MNPA)(MCL 55.261 et seq.); MCL 55.263(a); People v. Kaczorowski; Sanctions; "Frivolous"; Kitchen v. Kitchen; Smith v. Khouri, Applicability of MCR 2.114 in probate proceedings; MCR 5.114(A)(1); MCR 2.114(D)(2); MCL 600.2591(1); Reasonableness of the fees awarded; MRPC 1.5(a); Wood v. Detroit Auto. Inter-Ins. Exch.; Reed v. Reed; John J. Fannon Co. v. Fannon Prods., LLC; Head v. Phillips Camper Sales & Rental, Inc.; Souden v. Souden

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Don H. Barden Trust

e-Journal Number: 56822

Judge(s): Per Curiam – Stephens, Saad, and Boonstra


The court held that the pleadings failed to detail how the 2010 Trust was invalid under the MTC, and also failed to sufficiently establish a factual basis for petitioners' assumptions and conclusions. Petitioners' argument was "mere conjecture, 'unsupported by allegations of fact,'" and did not state a cause of action. They also failed to show any factual or legal basis for their claims. The court further found no abuse of discretion in the probate court's handling of the fee award. Thus, it affirmed the probate court's grant of motions to summarily dismiss petitioners' claims under MCR 2.116(C)(8) and (C)(10), and its award of attorney fees. Settlor Don H. Barden passed away in 2011. He executed a trust in 1994, which was amended in 2004 (the "2004 Trust") and 2010 (the "2010 Trust"). The 2010 Trust cover page indicated that it was executed on 5/4/10, but the signature was not notarized until 9/24/10. Several parties interested in the trust as either heirs or beneficiaries moved to set aside the 2010 Trust. They alleged that it "makes an unnatural disposition of Mr. Barden's property, in contrast to his long-standing and well known wishes that his siblings and his son receive a substantial gift from his estate." Petitioners argued they stated a cause of action sufficient to survive a motion for summary disposition under MCR 2.116(C)(8). They failed to note that the MREs "do not require extrinsic evidence of authenticity for documents 'accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public' or other authorized officer." While petitioners noted the later date of the notary's acknowledgment, they did not argue any effect of this in their filings. Further, the MNPA defines an "acknowledgment" as confirmation that a person "is placing or has placed his or her signature" on a record. In sum, while the petitioners challenged the authenticity of the 2010 Trust, they did not address the admissibility of the document under MRE 902 or the validity of the notary's post-dated acknowledgement. The acknowledgement appeared valid and the 2010 Trust was self-authenticating. Petitioners challenged whether the trust was in accord with the settlor's intent. They did not allege it was "invalid for lack of capacity, definite beneficiary, trustee duties, or that the trustee is the only beneficiary." Rather, they challenged the "authenticity" of the trust amendment. However, they provided no factual support in the pleadings for the invalidity of the 2010 Trust. The assertion that the trust provided for an "unnatural disposition" was conclusory, not factual. Further, the form of the 2010 Trust frustrated the intent argument. The 2004 Trust and 2010 Trust were drafted in similar form. By executing similar documents that acknowledged the settlor's signatory capacity, both trusts indicated the intent to form a trust. Finally, petitioners offered no facts in the pleadings to support their forgery claim.


Full Text Opinion
Back to e-Journal Mobile
News/Moves | Classifieds | Contacts | Full Version

© 2013 State Bar of Michigan