Dispute over a trust; Principle that a settlor’s intent must be carried out as nearly as possible; In re Kostin Estate; Effect of an incontestability provision; Principle that in terrorem clauses are generally valid & enforceable; In re Estate of Stan; Exception where probable cause exists for instituting a proceeding contesting the trust; MCL 700.7113; Undue influence; MCL 700.7406; In re Estate of Erickson; Amendment of the pleadings; MCL 600.2301; MCR 2.118(A)(1) & (2); Ben P Fyke & Sons, Inc v Gunter Co; Futility; MCR 2.116(I)(5); PT Today, Inc v Commissioner of Fin & Ins Servs

The court held that the probate court abused its discretion by denying respondent’s motion to amend. When respondent’s wife died, he learned that she had created a will and trust in 2007, and named her sister, petitioner, as trustee. The trust agreement provided that if respondent survived decedent, decedent’s personal effects would be allocated to his trust. Upon her death, he filed an objection to inventory, explaining decedent owned their marital home before they were married, but that they lived there together for their 25-year marriage. He also asserted that he and decedent “doubled the size” of the home during their marriage, using both of their money, and that they bought the travel trailer and vacant land together. Respondent explained that the assets were titled in decedent’s name alone in order to protect them from his creditors, as he was involved in a lawsuit, and indicated he did not know decedent deeded the home and vacant land to her trust in 2007. In response, petitioner filed a petition to register the trust and disinherit respondent in accordance with the Incontestability Provision, then moved for summary disposition. In response, respondent claimed for the first time that petitioner exerted undue influence over decedent to influence her to title the joint assets in decedent’s name alone and in setting up decedent’s trust without consultation with respondent. He then requested an opportunity to amend his pleadings. The probate court denied his request and granted petitioner’s motion for summary disposition, disinheriting respondent. On appeal, the court agreed with respondent that the probate court erred by denying his motion to amend his pleadings to add a claim of undue influence, but declined to address his argument that the probate court erred by granting petitioner’s motion for summary disposition. “[B]ecause the probate court’s denial of respondent’s motion to amend resulted in an injustice and the amendment would not be futile,” it determined the probate court abused its discretion by denying that motion. Having so concluded, it further found the probate court “erred by prematurely addressing the merits of the undue-influence claim.” In other words, where respondent “was entitled to amend his pleadings to add that claim, the probate court should have allowed for further proceedings to address the merits of that claim—which may include a grant of summary disposition at a later date.” Reversed and remanded.