Litigants in probate litigation are often lay persons with no probate litigation experience or expertise. When contacted by a potential probate litigation client, a practitioner should assess the merit and value of the case and frankly advise the potential client if the claim lacks merit or if the cost of litigation is disproportionate to the value of the claim.
The practitioner who represents a lay person in probate litigation should educate the client as to the civil litigation process. Early on, it should be determined whether the client seeks to preserve a personal relationship with the adverse party; if yes, then tactics should be adopted with that goal in mind. Probate litigation may be contentious and emotional, and a lay person client should be instructed to refrain from waging war with the adverse party through social media or texting.
A potential client may desire to contest the validity of a certain instrument made by the decedent, yet lack evidence as to decedent’s mental capacity on the date of the instrument. In this situation, the potential client may have the right to obtain the decedent’s medical records under the Medical Records Access Act (MRAA).1 If the potential client qualifies as an authorized representative under the MRAA, then the decedent’s medical records should be obtained and reviewed for indicia of mental incapacity. Such pre-litigation discovery may support a legal challenge to the validity of the instrument in question.
The probate court recognizes two forms of action: a civil action, commenced by filing a complaint, and a proceeding, commenced by filing a petition.2 A civil action in probate court is governed by the Michigan Court Rules applicable to civil actions generally. A proceeding in probate court is governed by procedural rules under Chapter 5 of the Michigan Court Rules. When drafting the initial offensive pleading, evidentiary support for factual allegations should be offered by attaching documentary exhibits and/or party/fact witness affidavits.
While a defendant in a civil action must file an answer to the complaint, a respondent in a proceeding need not file a written objection to the petition; instead, a respondent may object to the petition orally at the initial hearing.3 However, it is best practice for respondent’s counsel to prepare, file, and serve a written objection prior to the initial hearing. A written objection gives both the court and the petitioner notice of the existence of, and the grounds for, the objection. Moreover, if the petition hearing has been scheduled for an uncontested time slot, then filing the written objection before the hearing will alert the court that the matter needs to be rescheduled for a contested time slot.
Representing a party who is alleged to be incapacitated (e.g., the proposed ward in a guardianship or conservatorship proceeding) presents the risk that the Court may subsequently determine that the client lacked capacity to retain counsel. To avoid this risk, counsel may petition the probate court for a preliminary finding that the client possesses sufficient capacity to retain counsel. A fiduciary who is a party to probate litigation may also seek a preliminary ruling regarding the reasonableness of its fiduciary fee and/or its counsel’s hourly rate.
In a contested proceeding, the probate court may handle the initial hearing differently depending on what county you are in. Some counties may automatically use the initial hearing as a scheduling conference, while other counties may proceed directly to taking proofs. A practitioner appearing in a new county should ascertain how the probate court handles the initial hearing in order to avoid any surprises. Where the probate court is not in the habit of using the initial hearing as a scheduling conference, then it may be advisable to file a motion for a scheduling conference and entry of a scheduling order, particularly where it is imperative to obtain fact discovery prior to the trial of the matter.
The Legislature has expressly granted special authority to the probate court to enter a preliminary injunction. MCL 700.1309(b) provides that the probate court may “[e]njoin a person subject to the court’s jurisdiction from conduct that presents an immediate risk of waste, unnecessary dissipation of an estate’s or trust’s property, or jeopardy to an interested person’s interest.” Preliminary injunctions are routinely entered to prohibit expenditure and/or distribution of estate or trust assets pending a final ruling on the merits. This author is of the opinion that the standard for issuance of such a preliminary injunction is as set forth in the statute, and that the four-factor preliminary injunction test used in civil litigation does not apply; however, some probate courts will consider both standards.
Where the respondent is accused of having committed undue influence, it is appropriate for the probate court to enjoin the respondent from expending fiduciary assets on attorney fees to defend the proceeding unless and until the respondent is exonerated.4 Similarly, a trustee accused of breach of fiduciary duty should generally be enjoined from using trust assets to pay defensive attorney fees from trust assets unless and until the trustee is exonerated.5
Under MCR 5.131(B)(3), the scope of discovery in a proceeding is more limited than in a civil action: “Discovery in a probate proceeding is limited to matters raised in any petitions or objections pending before the court.” If discovery of topics not raised in the pleadings is sought in written discovery or depositions, objection should be made based on this rule.
Discovery will often raise attorney-client privilege issues. Under Michigan law, such privilege survives the death of the client and is held by the personal representative of the decedent’s estate.6 However, the personal representative may only waive the privilege for the benefit of the estate.7 In a will or trust contest, the testator or settlor’s testamentary intent is always discoverable and the attorney-client privilege is waived as a matter of law.8 However, in addition to the law of privilege, the ethical rules governing disclosure of client secrets also must be considered.9 It is advisable to obtain an order from the probate court authorizing disclosure of both privileged material and client secrets in connection with seeking discovery of the testator’s legal file held by counsel.
Forensic examination of electronic devices is becoming increasingly common in this area. The client should be instructed to preserve potentially relevant evidence, including email and text messages. Counsel should also give notice that the adverse party must suspend any deletion of electronic data while the probate litigation is pending.
Although probate litigation often involves parties with highly contentious relationships and strong negative emotions, it is the experience of this author that mediation will result in a settlement more often than not and therefore is a worthwhile exercise. Some probate courts routinely order mediation in their scheduling orders. If mediation has not been ordered and the adverse party will not voluntarily agree to participate in mediation, then the probate court may be willing to order mediation on the motion of the party seeking mediation. It may be beneficial to use a mediator with experience in probate litigation who is well qualified to evaluate the merits of the parties’ respective positions. In addition to the litigants, all other interested persons should be invited to participate in mediation. If an interested person foregoes the opportunity to participate in mediation but then objects to the merits of a settlement reached at mediation, the probate court may overrule the objection based on the failure to attend.
If a settlement agreement is reached, then the litigants should consider whether probate court approval of the agreement is necessary or advisable, in which case such approval may be made a condition precedent to the agreement’s effectiveness. Probate court approval should be included in the settlement if (a) the agreement calls for certain action by the probate court, such as modification of a trust agreement or approval of a fiduciary accounting; (b) any interested persons have not signed on to the agreement; and/or (c) the agreement calls for certain payments from fiduciary assets, such as payment of all litigation-related attorney fees from the estate or trust in dispute.
Where the dispute involves an ongoing fiduciary administration, the settlement agreement should be drafted to minimize the chance of the dispute reigniting upon the occurrence of future administrative developments. If there is bad blood between the personal representative and an estate beneficiary, then the beneficiary could choose to object to and litigate the personal representative’s future, post-settlement accountings in order to get another swing at his opponent. This risk may be avoided or minimized by having future accountings waived, or by imposing a heightened standard (e.g., gross negligence) for any beneficiary to object to future accountings.
The appellate rules governing probate litigation are different from those governing civil litigation generally. Under MCR 5.801, more than 30 types of probate court rulings are considered to be final orders that trigger an immediate right to appeal, even though the ruling may not dispose of all issues and the litigation remains pending. If such a final order is rendered but the non-prevailing party waits for the entire litigation to be resolved before filing a notice of appeal, such appeal will be untimely.
Finally, counsel should cultivate a cooperative relationship with guardians ad litem (GAL) who are the “eyes and ears” of the probate court, and who will likely be encountered again in future cases. An overly adversarial stance towards a GAL who disagrees with your client’s position will be counterproductive. Probate courts often follow the GAL’s recommendation, but not always, and the key is to respectfully persuade your judge that the facts and law support an alternate conclusion.