PROBATE LITIGATION. By Joseph P. Buttiglieri Kemp, Klein, Umphrey, Endelman & May, P.C. Introduction. I. Preliminary Matters

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1 PROBATE LITIGATION By Joseph P. Buttiglieri Kemp, Klein, Umphrey, Endelman & May, P.C. Introduction Contested actions are increasingly common in Probate Courts throughout the state. Litigation in probate is often extremely stressful to clients because they find usually themselves in litigation against family members. Attorneys in this arena need to be well-versed and experienced in Will and Trust Contests and other litigation issues that arise in Probate Court. While using a sensitive approach in an effort to preserve family relationships, an attorney still must zealously advocate the client s position. To do so in litigation one needs to be knowledgeable and able to provide complete litigation services in commencement of proceedings, procedure, discovery, mediation, case evaluation, arbitration, settlement and trial of both jury and non-jury cases. Whether you represent the petitioner, respondent, proponent, contestant or other interested person, your client s expectations will be high. These materials will hopefully assist in representing clients in probate litigation. I. Preliminary Matters A. What issues are contested in Probate? The issues that can be litigated in the probate court are numerous. The following list is extensive but I do not claim that every conceivable action is listed. It is a guide that is hopefully useful in showing the broad jurisdictional reach of the probate courts. 1. Wills. a. Validity b. Interpretation and construction c. Pretermitted Heirs 2. Trusts. a. Validity b. Interpretation c. Appointment or removal of Trustee(s) d. Internal affairs of trust 3. Claims. 4. Fiduciaries. a. Appointment b. Removal c. Inventories and Accounts d. Surcharge e. Fees

2 5. Guardianships, Conservatorships. a. Competency b. Appropriate fiduciary c. Termination 6. Protective Proceedings. 7. Determination of Title. a. Bank accounts b. Real estate 8. Spouse s Allowance 9. Felonious and Intentional Killing 10. Attorney Fees 11. Determination of heirs 12. Issues of surviving spouse/absent spouse 13. Prudent Investor Rule B. Who do you represent? 1. An individual needs to be an interested person in order to have standing to be involved in a probate matter. MCL (c) "Interested person" or "person interested in an estate" includes, but is not limited to, the incumbent fiduciary; an heir, devisee, child, spouse, creditor, and beneficiary and any other person that has a property right in or claim against a trust estate or the estate of a decedent, ward, or protected individual; a person that has priority for appointment as personal representative; and a fiduciary representing an interested person. Identification of interested persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, a proceeding, and by the Supreme Court rules. See MCR5.125 for a detailed listing of interested parties for almost every conceivable matter in the probate court. 2. An attorney does not represent the estate! MCR 5.117(A) An attorney filing an appearance on behalf of a fiduciary shall represent the fiduciary. C. Fee Agreement and Payment This is a sometimes neglected issue in probate court. Failure to have a written agreement may lead to difficulties in obtaining payment for services and can be a hotly contested issue. There is no good reason to commence representation without a written fee agreement. 1. MCR requires that an attorney rendering services on behalf a personal representative comply with this court rule which includes a requirement to enter into a written fee agreement. (Form A) 2. MCR covers contingency fees. 3. MRPC 1.5 sets forth the factors to be considered in determining the reasonableness of a fee.

3 4. There is more latitude when you represent other interested parties but is still the best practice to have a written fee agreement. This is especially true if you represent a fiduciary other than a personal representative. D. Jurisdiction and Venue Jurisdiction and Venue of the probate court are set forth at MCL which gives the court exclusive legal and equitable jurisdiction over many issues Application of act Sec Except as otherwise provided in this act, this act applies to all of the following: a. The affairs and estate of a decedent, missing individual, or protected individual who is domiciled in this state. b. A nonresident's property that is located in this state or property coming into the control of a fiduciary that is subject to the laws of this state. c. An incapacitated individual or minor in this state. d. Survivorship and related accounts in this state. e. A trust subject to administration or possible administration in this state. The court has concurrent jurisdiction over certain matters per MCL Exclusive legal and equitable jurisdiction Sec The court has exclusive legal and equitable jurisdiction of all of the following: (a) A matter that relates to the settlement of a deceased individual's estate, whether testate or intestate, who was at the time of death domiciled in the county or was at the time of death domiciled out of state leaving an estate within the county to be administered, including, but not limited to, all of the following proceedings: (i) (ii) The internal affairs of the estate. Estate administration, settlement, and distribution. (iii) Declaration of rights that involve an estate, devisee, heir, or fiduciary. (iv) Construction of a will. (v) Determination of heirs. (vi) Determination of death of an accident or disaster victim under section (b) A proceeding that concerns the validity, internal affairs, or settlement of a trust; the administration, distribution, modification, reformation, or termination of a trust; or the declaration of rights that involve a trust, trustee, or trust beneficiary, including, but not limited to, proceedings to do all of the following: (i) (ii) Appoint or remove a trustee. Review the fees of a trustee.

4 (iii) Require, hear, and settle interim or final accounts. (iv) Ascertain beneficiaries. (v) Determine a question that arises in the administration or distribution of a trust, including a question of construction of a will or trust. (vi) Instruct a trustee and determine relative to a trustee the existence or nonexistence of an immunity, power, privilege, duty, or right. (vii) Release registration of a trust. (viii) Determine an action or proceeding that involves settlement of an irrevocable trust. (c) Except as otherwise provided in section 1021 of the revised judicature act of 1961, 1961 PA 236, MCL , a proceeding that concerns a guardianship, conservatorship, or protective proceeding. (d) A proceeding to require, hear, or settle the accounts of a fiduciary and to order, upon request of an interested person, instructions or directions to a fiduciary that concern an estate within the court's jurisdiction. The court has concurrent jurisdiction over certain matters per MCL Additional jurisdiction; concurrent legal and equitable; motion for removal; purpose and policy of section Sec (1) In addition to the jurisdiction conferred by section 1302 and other laws, the court has concurrent legal and equitable jurisdiction to do all of the following in regard to an estate of a decedent, protected individual, ward, or trust: (a) Determine a property right or interest. (b) Authorize partition of property. (c) Authorize or compel specific performance of a contract in a joint or mutual will or of a contract to leave property by will. (d) Ascertain if individuals have survived as provided in this act. (e) Determine cy-pres or a gift, grant, bequest, or devise in trust or otherwise as provided in 1915 PA 280, MCL to (f) Hear and decide an action or proceeding against a distributee of a fiduciary of the estate to enforce liability that arises because the estate was liable upon some claim or demand before distribution of the estate. (g) Impose a constructive trust. (h) Hear and decide a claim by or against a fiduciary or trustee for the return of property. (i) Hear and decide a contract proceeding or action by or against an estate, trust, or ward. (j) Require, hear, or settle an accounting of an agent under a power of attorney.

5 (k) Bar an incapacitated or minor wife of her dower right. (2) If the probate court has concurrent jurisdiction of an action or proceeding that is pending in another court, on the motion of a party to the action or proceeding and after a finding and order on the jurisdictional issue, the other court may order removal of the action or proceeding to the probate court. If the action or proceeding is removed to the probate court, the other court shall forward to the probate court the original of all papers in the action or proceeding. After that transfer, the other court shall not hear the action or proceeding, except by appeal or review as provided by law or supreme court rule, and the action or proceeding shall be prosecuted in the probate court as a probate court proceeding. (3) The underlying purpose and policy of this section is to simplify the disposition of an action or proceeding involving a decedent's, a protected individual's, a ward's, or a trust estate by consolidating the probate and other related actions or proceedings in the probate court. E. Statute of Limitations and Laches 1. Informal probate proceedings for the probate of a will do not set any statue of limitations for the filing of a will contest. The protection offered by formal admission of a will which will limit the time for the filing of a contest is an important consideration when probating a will. 2. If you have any indication that there may be a contest, get formal admission of will or formal orders for whatever actions you want to take. If you represent a contestant, determine immediately the status of Court file, as to formal or informal. Use the code to your advantage. It may be a little more time consuming and expensive to use formal proceedings, but if you explain why to the client, you are unlikely to get complaints. 3. Claims are governed by statute and it is important to pay close attention to the time limitations and requirements set forth in EPIC. The requirements apply not only to the time in which claims can be made, but to the denial of claims. 4. Accounts are required to be filed within certain time periods and failure to do so can lead to removal and or objections that might not have otherwise have come up. In trust, the filing of accounts in conformance with the statute will start the running of the limitation period and protect the trustee from stale claims. 5. Laches is not something often addressed in Probate court but unless there are changes in the code that set a time limit for the filing of a will contest, we may see it raised more often. Basically, laches is an equitable concept that prevents one from bringing a claim due to a passage of time and the unfairness of allowing the claim where the positions of the parties have changed due to the passage of time. MCL : specifically addresses laches. While laches may be a defense, the cases dealing with that defense seem to imply that years must pass before such a defense will succeed. A twenty year delay constituted laches in the case of Corby v Trombley, 110Mich NW 139 (1896). Seventeen years worked in Dodge v Detroit Trust Co., 300 Mich 575, 2NW2d 509 (1942).

6 II. Procedure A. Petitioner and Respondent, Proponent and Contestant and Interested Persons have different rights, duties and burdens. Understanding those different rights and duties and using EPIC to your client s advantage is crucial. For example, MCL sets forth the burdens in contested cases under formal testacy proceedings, including the burdens of proponent and a contestant with regard to a will. 1. MCL (1) All of the following apply in a contested case: (a) A petitioner who seeks to establish intestacy has the burden of establishing prima facie proof of death, venue, and heirship. (b) A proponent of a will has the burden of establishing prima facie proof of due execution in all cases and, if the proponent is also a petitioner, prima facie proof of death and venue. (c) A contestant of a will has the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. (d) A party has the ultimate burden of persuasion as to a matter with respect to which the party has the initial burden of proof. (2) If a will is opposed by a petition for probate of a later will revoking the former, the court shall first determine whether the later will is entitled to probate. If a will is opposed by a petition for a declaration of intestacy, the court shall first determine whether the will is entitled to probate. The Standard Jury Instructions are helpful in determining Burdens. 2. M Civ JI Will Contests: Burden of Proof The proponent has the burden of proving a. *(that the will is a holographic will as defined by law;) b. *(that the [will / codicil] was signed by [the decedent / another person at decedent s direction and in [his / her] conscious presence];) c. *(that the [will / codicil] was witnessed in the manner required by law;) d. *(that the document was intended by the decedent to be [his / her] will and transferred [his / her] property after death and not during [his / her] lifetime;) e. *(by clear and convincing evidence that the decedent intended the document or writing to constitute [a will / a partial or complete revocation of a will / an addition to or alteration of a will / a partial or complete revival of [a formerly revoked will / a formerly revoked portion of the will] ].) On the other hand, the contestant has the burden of proving a. *(that the will was the result of undue influence;) b. *(that the decedent did not have the mental capacity to make a will;)

7 c. *(that the will was the result of an insane delusion;) d. *(that the will was revoked by [the decedent / another person at the direction of and in the conscious presence of the decedent];) e. *(that the will was procured as a result of fraud.) 3. EPIC is your guide as to rights and duties. MCL Defend or prosecute a proceeding; necessary expenses and disbursements Sec If a personal representative or person nominated as personal representative defends or prosecutes a proceeding in good faith, whether successful or not, the personal representative is entitled to receive from the estate necessary expenses and disbursements including reasonable attorney fees incurred. 4. The court rules also provide guidance. MCR RULE ACTION BY FIDUCIARY IN CONTESTED MATTER; NOTICE TO INTERESTED PERSONS; FAILURE TO INTERVENE The fiduciary represents the interested persons in a contested matter. The fiduciary must give notice to all interested persons whose addresses are known that a contested matter has been commenced and must keep such interested persons reasonably informed of the fiduciary's actions concerning the matter. The fiduciary must inform the interested persons that they may file a petition to intervene in the matter and that failure to intervene shall result in their being bound by the actions of the fiduciary. The interested person shall be bound by the actions of the fiduciary after such notice and until the interested person notifies the fiduciary that the interested person has filed with the court a petition to intervene. B. Choices under EPIC: Formal proceedings, Informal proceedings or Supervised Proceedings? 1. MCL (h) "Formal proceedings" means proceedings conducted before a judge with notice to interested persons. This eliminates the danger of a contest being filed after distribution is made and gives you assurance of finality. It forces a potential contestant to file objections timely. 2. MCL (b) "Informal proceedings" means proceedings for probate of a will or appointment of a personal representative conducted by the probate register without notice to interested persons. This can be dangerous if there is any chance of a will contest or other contests because there is no statute of limitation for filing objections. The objections in the form a petition to set aside admission of the will in informal probate can come at any time, even if the assets have been distributed. 3. MCL (i) "Supervised administration" means the proceedings described in part 5 of article III Supervised personal representative; responsibilities, duties, and powers Sec

8 (1) Supervised administration is a single in rem proceeding to secure complete administration and settlement of a decedent's estate under the court's continuing authority that extends until entry of an order approving estate distribution and discharging the personal representative or other order terminating the proceeding. (2) A supervised personal representative is responsible to the court, as well as to the interested persons, and is subject to directions concerning the estate made by the court on its own motion or on the motion of an interested person. (3) Except as otherwise provided in this part or as otherwise ordered by the court, a supervised personal representative has the same duties and powers as a personal representative who is not supervised. C. Two Forms of Action in Probate Court RULE FORM AND COMMENCEMENT OF ACTION (A) Form of Action. There are two forms of action, a "proceeding" and a "civil action." (B) Commencement of Proceeding. A proceeding is commenced by filing an application or a petition with the court. (C) Civil Actions, Commencement, Governing Rules. The following actions, must be titled civil actions, commenced by filing a complaint and governed by the rules which are applicable to civil actions in circuit court: (1) Any action against another filed by a fiduciary, and (2) Any action filed by a claimant after notice that the claim has been disallowed. D. Court Rules. The importance of being familiar with the court rules in a contest cannot be over emphasized. The time when practitioners could assume that the court rules were only important in circuit court cases is long passed. The court rules in probate court are important, not only in terms of discovery, but in terms of service, interested persons, and issues such as letters of authority, inventories, accounts, notice to creditors and other similar issues that are not seen in other courts. Some of the applicable court rules are set forth in this outline. 1. RULE APPLICABILITY (A) Applicability of Rules. Procedure in probate court is governed by the rules applicable to other civil proceedings, except as modified by the rules in this chapter. (B) Terminology. (1) References to the "clerk" in the Michigan Court Rules also apply to the register in probate court proceedings. (2) References to "pleadings" in the Michigan Court Rules also apply to petitions, objections, and claims in probate court proceedings. E. Discovery The failure to do adequate discovery occurs far too often. While the importance of knowledge of the law cannot be minimized, far too often attorneys neglect discovery. Most cases settle as a result of discovery or are decided on summary disposition based on facts determined in the discovery process. Thus, the importance of discovery is critical where fact

9 issues will decide the strength of and the outcome and your client s case in ADR, during settlement negotiations and at trial. 1. MCR a. The general discovery rules apply in probate proceedings. b. Discovery in a probate proceeding is limited to matters raised in any petitions or objections pending before the court. Subchapter governs discovery in civil actions in probate court. 2. Interrogatories per MCR can be helpful but don t help your opponent make his case by forcing him or her to educate his or her client. For model interrogatories see Form B. 3. Requests for Production of Documents per MCR can be important in a contest. However, don t help your opposition make his or her case. See Form C. 4. Depositions per MCR are often where the case is made or broken. Questioning of fact witnesses is particularly important and sometimes brushed off by some attorneys. You must determine what the witness will testify to even if it is not in your favor. For most contested matters, depositions are the closest your client will ever get to a layperson s concept of trial. F. Trial Practice and Procedure 1. Pretrial Procedures; Conferences; Scheduling Orders MCR directs that MCR shall apply in a contested proceeding. a. Some courts require a Pre-Trial Statement (See Form E used in Wayne County). Even if not required, using a Pre-Trial Statement can help you direct the Pre-Trial or Status Conference in a manner helpful to your client. You can request due dates and cut off dates for witness lists, exhibit lists and discovery. Especially if you represent the petitioner or proponent, you will want to limit the time discovery will be open to resolve or try the case as quickly as possible. 2. Pretrial Motions in Contested Proceedings MCR provides: In a contested proceeding, pretrial motions are governed by the rules that are applicable in civil actions in circuit court. Motions to consider include: a. Compliance with discovery requests b. Security for Costs per MCR c. Summary Disposition (for some issues if not all) 3. Jury Trial MCR You must make demand for jury trial in writing within 28 days of after an issue is contested. Failure to pay timely file the demand or pay the fee waives trial by jury. G. Alternative Dispute Resolution. As the probate courts become busier, many probate judges are proactively submitting contested matters to mediation, case evaluation and other dispute resolution processes, including arbitration. Additionally, the rules applicable in circuit court are applicable in probate court to the extent feasible pursuant to amendments made effective April 1, See section V of this outline for a more detailed discussion of these issues.

10 H. Consider a request for the appointment of a Guardian Ad Litem There are many situations in which a GAL can be helpful if you believe he or she will be adopting your position. This is especially true in contests of guardianship and or conservatorship. 1. MCR requires the court to appoint a Guardian Ad Litem when required by law and gives it discretion to appoint one for any person in any proceeding. I. Trial Notebook and Trial Brief 1. A trial notebook can be started early in the case and will help with preparation of motions, discovery requests and almost every aspect of the case. A typical trial notebook index is attached as Form F. 2. Some courts require Trial Briefs and others do not. However, I ve never had a court refuse to accept a Trial Brief even if not required and even if the other side has not prepared one. MCR 2.401(D) specifically states that the court may require trial briefs as to any or all issues. III. Evidence in Contests A. The Probate courts are governed by the Michigan Rules of Evidence Some of the rules have particular application or importance to Probate issues. 1. MRE 803 covers hearsay exceptions which often apply in probate issues. 2. MRE 804 also addresses hearsay and defines unavailability as a witness. 3. MRE 902 Self-Authentication (very important in determination of heirs) B. Documents should be obtained and reviewed as quickly as possible. Demand copies of all documents that may be relevant that are in the control of the opposition as quickly as possible. Subpoena documents not in the possession of opposition. Documents you should seek out include the following. See Form C. 1. Prior Wills 2. Files of any will scriveners 3. Trusts 4. Contracts for real estate, automobile purchase or other big ticket items. 5. Cancelled checks and check registers 6. Tax returns 7. Letters and cards 8. Charge card records 9. Notes or memos in decedent s handwriting 10. List of assets prepared by decedent 11. Loan application forms or other similar documents that show decedent know the extent of her bounty.

11 C. Testimony A witness s testimony seldom improves with age. Obtain a witness list at the soonest opportunity from your own client and from opposing counsel. Then, make the time to interview or have interviewed all the witnesses that will voluntarily speak with you. (Obviously not opposing counsel s client or clients) Ask them to write you a letter telling what they know and or have them sign an affidavit. And if they won t speak to you and you believe they have important information, take their depositions. Witnesses you should be looking for include the following. 1. Scrivener and will/trust witnesses 2. Relatives that kept in contact with the decedent or prospective ward 3. Treating physicians, nurses, doctor s office personnel and other medical personnel. 4. Mail carrier, paper delivery person, grocery clerks, lawn service people etc. 5. Bank officers and tellers 6. CPA or other Tax preparation person 7. Neighbors and friends 8. Home care providers 9. Nursing home personnel 10. Ministers, Priests and Rabbis. D. Medical records and testimony Medical records and the testimony of doctors and other presumably impartial medical personnel can be crucial. Unfortunately, these persons often do not want to become involved or they may have seen only one side of the family and have become prejudiced. Many times, your client will know the doctors and nurses that are most likely to have relevant information and it should be pursued. 1. Medical Records. Generally, medical records will be obtainable for purposes of a will contest and often for other contests. Medical records are important in their own right because they often contain statements with regard to person s mental and emotional state and also lead to the names of doctors, nurses and other professionals that may be able to recall the client and testify with regard to competency. Medical records are also important because the client may have signed in and out of the hospital or signed for tests. If the person is not competent, why would the doctor or medical facility ask him or her to sign anything? a. Doctor/Patient Privilege Issues MCL : Except as otherwise provided by law, a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribe for the patient as a physician, or to do any act for the patient as a surgeon. If the patient brings an action against any defendant to recover for any personal injuries, or for any malpractice, and the patient produces a physician as a witness in the patient s own behalf who has treated the patient for the injury or for any

12 disease or condition for which the malpractice is alleged, the patient shall be considered to have waived the privilege provided in this section as to another physician who has treated the patient for the injuries, disease, or condition. If a patient has died, the heirs at law of the patient, whether proponents or contestants of the patient s will, shall be considered to be personal representatives of the deceased patient for the purpose of waiving the privilege under this section in a contest upon the question of admitting the patient s will to probate. If a patient has died, the beneficiary of a life insurance policy insuring the life of the patient, or the patient s heirs at law, may waive the privilege under this section for the purpose of providing the necessary documentation to a life insurer in examining a claim for benefits. (Emphasis supplied.) E. Hearsay Issues 1. Hearsay exceptions that can help prove competency. a. Mental, emotional and physical condition may be testified to if it relates to execution, revocation, identification or terms of a will. MRE 803(3): The following are not excluded by the hearsay rule, even though a declarant is available as a witness;... (3) Then Existing Mental, Emotional, Physical Condition. A statement of the declarant s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification or terms of declarant Will. This rule of evidence will allow statements made by the decedent about the time a will was signed such as: (1) I am ill; (2) I plan to change my will; (3) I feel fine; (4) I am afraid; (5) I feel sharp mentally but physically I don t feel well. (6) I intend to cut my son Roger out of my will. Statements made for medical treatment are exceptions to the hearsay rule. MRE 803(4) The following are not excluded by the hearsay rule, even though a declarant is available as a witness: (4) Statements Made for Purposes of Medical Treatment or Medical Diagnosis in Connection with Treatment. Statements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably necessary to such diagnosis and treatment. This exception to the hearsay rule should allow a doctor to testify as to statements made to him by the testator such as

13 (1) Doctor, mentally I feel fine but I ve had chest pains for the last two weeks and have had difficulty walking; (2) I am confused; (3) I am afraid that my physical condition will start to affect me mentally. It is unlikely that these statements will be admissible if the client was sent to the doctor solely to determine competency and not for treatment of a medical condition. IV. Preventing contests A. Communication is the key. I believe at least some litigation could be avoided if full information was given to all interested parties early on. Whether the issue is a guardian for mom, or dad s trust, one of the big complaints attorneys, courts and sometimes the grievance commission hear is that information has not been provided. While we can not compromise our duty to maintain our client s confidences, there is often much information we can or are required to share with interested parties that will put them on notice as to what is or has been done. Someone might not like a decision dad made, but if he or she sees it was knowingly made, litigation may be avoided. Fiduciaries can prevent challenges by promptly filing inventories, even if you have to indicate the inventory may need to be amended. Timely accounts will end speculation about how mom s money is being used. B. It all starts with the attorney. The scrivener s role in preventing a will contest starts from the first meeting with an estate planning client and cannot be minimized. The client is relying upon your skill as an attorney to be sure his or her wishes are enforceable and carried out. 1. Make sure it is clear (to yourself and others) who your client is and from whom you are obtaining information and instructions. 2. Ask the necessary questions and get full information from the client or confirm all information with the client 3. Do not include beneficiaries in conferences with the client. 4. Have the client fill out and use a standard will information form. 5. Ask if a problem can be expected. 6. Discuss payment with the client and pay attention to how you are paid. 7. In terrorem clause? Of limited use due to statute and only effective if there is much to lose. See Discuss issues other than the business at hand such as sports, the stock market, weather, family members and family events and medical and health issues. 9. The scrivener s file can make a crucial difference. Keep your file well organized. 10. Use an attestation clause. See Utley v First Congregational Church, 368 Mich Use the statute for a Self proved will: MCL (1) 12. Taping and or video taping. 13. An excellent execution procedure used at every will execution.

14 C. Make sure that no contest can be filed before you dispose of documents. If there is any chance of a will or trust contest, preserve documents that may be helpful until after the time for filing a contest has passed. Save documents such as: 1. Canceled checks and check registers 2. Tax Returns 3. Letters 4. Cards 5. Contracts for real estate, automobiles or other big ticket items. 6. Proof of gifts 7. Receipts 8. Charge Card Records 9. Notes or memos in decedent s handwriting 10. List of assets made by the decedent; 11. Applications for loans or other similar documents prepared by decedent which show a knowledge of his or her assets. D. If a contest of a will or trust is possible, consider a medical examination for your client before the execution. 1. Use client s regular physician if possible. 2. Use same expert(s) that you would call after death. 3. Explain the purpose to the doctor and get a copy of his report and opinion as to your client s competence to be placed into your file. E. Gifts from a Trust executed contemporaneously with the Will may make the Will much more difficult to contest and assist with a successful Summary Disposition motion. Make distributions from a Trust during Settlor s Lifetime. If there is a chance that the document will be challenged at a later date, one way to prevent a contest based on competence is to make distributions under the document. In the case of In Re: Beglinger Trust, 221 Mich App 268 (1997) family members challenged the Trust of the decedent based on lack of capacity, undue influence and misrepresentation. However, before the petition challenging the Trust was filed, the petitioners had accepted distributions of money pursuant to the terms of the Trust. Summary disposition was granted by the trial court with the court ruling that the petitioners acceptance of money from the Trust barred them from challenging the Trust. The Court of Appeals sustained the trial court based on the doctrine of election and stated on page 276 Under the doctrine of election a person cannot accept and reject the same instrument, or, having availed himself of it as to part, defeat its provisions in any other part. In the Beglinger case, distributions were made after the decedent died. It would probably even be more effective if distributions are made and accepted during the settlor s lifetime. If the distributions under the Trust are refused this may very well be important information that allows you to assist

15 your client in establishing competency knowing that the beneficiary has already refused to accept money under the Trust. The doctrine of election will also work where beneficiaries accept distributions under a last will and testament. They will then be estopped to claim that the decedent was not competent because they can no longer the challenge the document. F. Substantial gifts to a potential contestant at or about the time the will is signed will be persuasive evidence that the contestant believed the testator was competent. A contestant and her attorney will be hard pressed to explain why the decedent was of sound enough mind to make a gift to her, but not competent to make a will cutting her out form the rest of her estate. Reference to the gift can even be made to in the will. G. Consider Video Taping of Execution of Wills, Trusts and Powers of Attorney. Videotape of the execution can be very persuasive if it shows your client in his or her best light. The decision to videotape the execution should be carefully made. 1. Questions to help you decide if you should make a videotape: a. What kind of appearance will your client make on camera? b. Is client neat, clean and appropriately dressed? c. Any eye problems? d. How well does your client speak? e. Does your client speak English clearly? 2. Advice from a video company (Action Video, Inc.). a. Consider whether your client has ever been video taped before. Will he or she be comfortable in front of the camera? b. If the client is particularly nervous or upset over the process, he or she may look bad when he or she is really okay. c. The attorney should not sit across from the client. Sit next to the client. This prevents an accusation that the attorney is signaling the client or doing anything improper d. The attorney should not do an opening. Don t state the date and time. Let the client answer questions that indicate where the parties are, the date, time and why he/she is present. e. Have the testator identify the witnesses. f. Ask about sports and engage in chit chat. g. Advise client about dress. Don t let your client change his or her normal pattern of dress. If Uncle Ralph usually wore blue jeans and t-shirt, it is not going to make him look competent to appear in a suit and tie in the will execution video. h. Make sure the client understands that the video tape is not his or her will. The will is the document that it is signed. There is no such thing as a video taped Will. There is only the video taping of the execution which can be used as evidence at a later date. i. Have an original of the execution stored in a safe place such as a bank safe deposit box or in the attorney s office.

16 V. Alternative Dispute Resolution As the probate courts become busier and busier, many probate judges are actively submitting contested matters to mediation, case evaluation and other dispute resolution processes, including arbitration. Additionally, the rules applicable in circuit court are applicable in probate court to the extent feasible pursuant to amendments made effective April 1, A. The courts have authority to compel parties to mediation. As a result many courts are requiring mediation before cases may proceed to trial. For an interesting viewpoint on this issue one can review the Dissenting Statement of Supreme Justice Kelly to 2000 Amendment, found repeated after many sections of Subchapter of MCR. MCR Alternative Dispute Resolution (a) The court may submit to mediation, case evaluation or other alternative dispute resolution process one or more requests for relief in any contested proceeding. MCR applies to the extent feasible. (b) If a dispute is submitted to case evaluation, MCR and shall apply to the extent feasible, except that sanctions must not be awarded unless the subject matter of the case evaluation involves money damages or division of property. MCR Alternative Dispute Resolution (a) Scope and Applicability of Rule; Definitions (1) All civil cases are subject to alternate dispute resolution processes unless otherwise provided by statute or court rule. B. Consider ADR Early Some courts are addressing the issue of ADR at the very first hearing, prior to any discovery. This is probably because the courts have learned that the discovery process can be the very process that makes settlement more difficult. You should be ready to respond to the court s suggestion of early ADR by discussing it with your client and explaining that if may be required by the court. Perhaps even more important is to introduce the concept of ADR to your client at the first mention of possible litigation. While clients may be quick to threaten litigation (sometimes before even speaking with any attorney), it is important for a client to understand the emotional and financial costs. ADR can be presented as a realistic manner of resolving disputes in a less formal and less expensive way without the emotional tension and discord that often result from formal litigation. This can be a real service to the client and showcase the attorney as more interested in efficient problem solving than in generating a fee. Just as important to the attorney is that you will remain an integral part of the process in crafting a solution. C. Case Evaluation MCR 5.143(B) If a dispute is submitted to case evaluation. MCR and shall apply to the extent feasible, except that sanctions must not be awarded unless the subject matter of the case involves money damages or division of property. Case evaluation is familiar to many lawyers as what was for many years referred to as mediation. Case evaluation usually consists of a panel of lawyers that make a recommendation as to how a case should be settled in terms of a monetary payment and is likely most effective in personal injury and other cases that are resolved by the payment of money.

17 D. Mediation/Facilitation MCR 5.143(A). The court may submit to mediation, case evaluation or other alternative dispute resolution process one or more requests for relief in any contested proceeding. MCR applies to the extent feasible. According to MCR 2.411, mediation is a process in which a neutral third party facilitates communication between parties, assists in identifying issues, and helps explore solutions to promote a mutually acceptable settlement. A mediator has no authoritative decision making power. This process is often called facilitative mediation and has long been used successfully in the family law arena. It is now more easily available in Probate Courts and can be helpful in resolving issues that involve family emotions as much as money. E. Arbitration The court cannot mandate arbitration but it is an option that may be considered. It can lead to a less expensive and speedier resolution. If you use arbitration, be sure your client fully understands it and the loss of jury trial (if applicable) and eliminated or greatly reduced appeal rights. Many clients do not fully understand that arbitration effectively replaces the judge or jury as the decision-maker. VI. Settlement A. Settlement is authorized and encouraged by MCL , 3914, 7111 & 7411 While clients may often state that there will be no compromise and settlement, we know that the vast majority of cases do ultimately settle. Often, before we can settle a case, it must ripen. The attorneys on behalf of their client must obtain the factual information by the subpoenaing and examination of documents, taking of depositions and then educating the client about the cost, time, emotional trauma and possible and probable result of continuing to trial. See Form G. B. Procedure is important. If all interested parties have not been involved in the litigation, you must give them notice of the proposed settlement or they may be in a position to veto or upset it later. VII. Forms A. Retainer Agreement B. Interrogatories C. Production of Documents D. Deposition Questions for a Scrivener E. Pre-Trial Statement F. Trial Notebook Index G. Settlement Agreement H. Objections

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19 RETAINER AGREEMENT FORM A KEMP, KLEIN, UMPHREY, ENDELMAN & MAY, P.C. Professional Corporation Suite 600 Columbia Center 201 West Big Beaver Road Troy, Michigan (248) The undersigned hereby retains the firm of Kemp, Klein, Umphrey, Endelman & May, Professional Corporation in the following matter: REPRESENT JOHN JONES AS LITIGATION COUNSEL TO SUSTAIN THE WILL OF JOSEPH JOSEPH, DECEASED DATED IN THE MACOMB COUNTY PROBATE COURT ATTORNEY FEES. It is agreed that attorney fees shall be paid as follows: You have agreed to pay this firm the sum of $10,000.00, which will be placed in a client trust account on your behalf as a retainer deposit. Upon forwarding our invoices to you, we will withdraw from the trust account retainer deposit an amount equal to the invoice and deposit that amount to our firm s account in full or partial satisfaction of the invoice. If your retainer balance is reduced to $ or less, you will, upon request, remit an additional sum sufficient to maintain the retainer balance at $5, Minimum Hourly Rate: $ This rate may be increased January 1st of each year after execution to a rate reflective of rates in the community. All time billed is portal to portal and at a minimum of one-tenth hour per service. The client will be notified in advance of any rate increase. Services of support staff will be billed at rates of $30.00 to $ per hour. Services of other attorneys in the firm that work on this case will be billed at that attorney s standard rate. ADDITIONAL SERVICES It is hereby understood by the undersigned that if the case is contested or if it necessitates any legal services which are in addition to those specified in this agreement that the attorney shall be entitled to compensation for all services rendered, which are in addition to those specified. COSTS. It is agreed that you will reimburse this firm for all costs advanced that are related to the performance of the legal services undertaken. These include costs of investigation, service of process, filing fees, depositions, expert witness fees, travel, expenses, mileage, long-distance telephone calls, computer research and tax charges, tax preparer fees, and all other out-of-pocket expenses. In addition, a three percent (3%) administrative charge is added to the time charges reflected on each statement which represents a fair approximation of untracked expenses for such items as photocopies, postage, facsimile transmissions, and intrastate telephone charges. UNPAID ACCOUNTS. Clients are billed monthly for any unpaid balance, and payment is due within ten (10) days of date of invoice. All unpaid attorney fees and costs due at the conclusion of the case are payable upon entry of final orders or judgment, dismissal of action, or termination of attorney services, whichever occurs first, and if not paid within ten (10) days, client agrees that attorney will have a lien on any property in client's name. ATTORNEY SERVICES. The attorney will prepare all necessary court pleadings in connection with this matter (if needed) and generally perform all reasonable and necessary

20 attorney services required in properly representing the client. We will send you copies of the relevant documents involved and will keep you generally informed of current material developments in this matter. It is also understood that the court rules may require firm members other than the attorney assigned to your case to appear at court hearings. TAX AND OTHER EXPERTS. It is further understood that accountants, investigators, actuaries and other experts may be necessary to properly bring or defend this action. The client agrees that the attorney shall have the authority to retain the services of these persons. The client agrees to pay the fees and costs of the above persons. APPEAL. The provisions of this retainer agreement relative to fees and costs are limited to the initial processing of litigation of the matter in the trial court. In the event an appeal from any judicial determination is required, further agreement shall be made between the parties as to fees and costs. WITHDRAWAL OR TERMINATION OF FIRM. Either our firm or you may terminate this attorney/client relationship at any time and for any reason on prior written notice to the other party, whereupon a final accounting will be provided and all accounts between us will be settled. Upon termination, our firm will withdraw from any litigation, or other matter, and you agree to take all reasonable actions to assist us in doing so. RECORDS AND DOCUMENTS. Our firm does not fulfill the role or undertake the obligations of a long-term record or document keeper. At the conclusion of the matter we will return to you all original documents and other materials that you supplied to us. We will also give you the original of all contracts and other legal documents that you or others have signed. At your request we will provide you other portions of the file. We regard duplicate copies of papers, as well as drafts, memos and notes, and research as firm property, but we will endeavor to accommodate your reasonable requests on these subjects. We will store the main portions of the files for a period of time after the conclusion of the matter that we deem reasonable. After that time, a notice will be sent to you at the last address in the file or our client list. The notice will advise you that you may, within 30 days from the date of notice, obtain papers in our files at no charge. After that date, we may thereafter, without additional notice to you, destroy the file or otherwise disposed of in a manner that preserves the confidentiality of our representation of you. OTHER LEGAL MATTERS. If this firm undertakes to represent you on other matters, the agreement stated here will be applicable to those matters as well, with modifications relating to the establishment of any retainer or guarantee required. Dated in Troy, Michigan, this day of Client: JOHN JONES Address: 5437 DAY STREET, SOMWHERE, MI Phone: HM Joseph P. Buttiglieri FORM A

21 FORM B STATE OF MICHIGAN IN THE PROBATE COURT FOR THE COUNTY OF MACOMB In the Matter of the Estate of: MARIE E. DOE, DECEASED FILE NO: DE / JOE JONES (P00000) Attorney for Proponent Will Contest Court Mount Clemens, MI (248) KEMP, KLEIN, UMPHREY, ENDELMAN & MAY, P.C. JOSEPH P. BUTTIGLIERI (P26410) Attorneys for Contestants Patricia A. Doe, Edward T. Doe and Joseph M. Doe 201 W. Big Beaver, Ste. 600 Troy, MI (248) / Hon: Pamela G. O Sullivan FIRST INTERROGATORIES TO PROPONENT HEATHER NEIGHBOR AND REQUEST FOR PRODUCTION OF DOCUMENTS Contestants, Patricia Doe, Edward T. Doe, and Joseph M. Doe, through their attorneys, KEMP, KLEIN, UMPHREY, ENDELMAN & MAY, Professional Corporation, by Joseph P. Buttiglieri, submit the following Interrogatories, as authorized by MCR 2.309, to be answered under oath, separately and fully in writing within twenty-eight (28) days from this date: Each of the following Interrogatories shall be deemed continuing. If between the time you prepare your answers and the time of trial you directly or indirectly obtain further or different information or knowledge than that contained in your answers, you are required to file amended answers to these interrogatories within twenty-eight (28) days after receipt of such further or different knowledge or information, or prior to trial, whatever first occurs.