Was that supposed to be a trust amendment? If you were to write a letter to your son or daughter telling them that you want to disinherit a different son or daughter, do you have to do more to accomplish your wish to disinherit? A recent Michigan Court of Appeals case deals with that very issue. The answer may surprise you! Why? Because amending your trust doesn’t require a fancy form or particular language, just the intent to amend it. The lesson to be gleaned from this case is that you should be working closely with an estate planning attorney to carefully plan your estate so you can accomplish your goals and avoid litigation. It is preferable to wasting money because your children are fighting in court over whether a letter you wrote disinherits their sibling.
This case is not as strange as it seems. The reason why it is not so strange is that Michigan law and most law in this country has moved away from formalistic requirements that place form over substance. In fact, Michigan’s Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq provides “This act [will] be liberally construed and applied to promote its underlying purposes and policies, which include all of the following: . . . (b) to discover and make effective a decedent’s intent in distribution of the decedent’s property. . . .” In other words, the most important thing a court should consider is the intent of the decedent and not his or her use of ritualistic language that contains magical legal powers.
In this case, the decedent had written four letters to his children and grandchildren that expressed his intent to disinherit his one son. The Probate Court judge refused to allow these documents as an amendment to his trust. The Judge said ‘[m]y problem is he never said, “I hereby amend my trust.”’ The Court of Appeals rejected the Probate Court’s reasoning. In fact, the court said Michigan law “does not impose any type of language or formality requirement. Instead, it expressly imposes a relaxed standard”.
So, what does it all mean? BE Careful. The law and common sense are not always the same thing. It is good to have a trusted advisor helping you with your trust. Furthermore, if you want make a trust amendment, have a clear document created, so a judge is not left to guess what you meant to do.
In re Estate of Leon Erson Barrenger, unpublished per curiam of the Court of Appeals, issued May 11, 2017 (Docket No. 332837)
Dafoe Law, PLLC is a Life Care Planning law firm serving the Estate Planning, long-term care, probate, and trust administration needs of clients in Saginaw, Bay, Genesee, Huron and Tuscola Counties. Dafoe Law can help you with a trust amendment or any other elder law or estate planning needs. Dafoe Law serves Frankenmuth, Bridgeport, Birch Run, Reese, Millington, Clio, Vassar, Saginaw, Saginaw Township, Freeland, Thomas Township, Spaulding Township, Burt, Bay City, Essexville, Munger, Kochville Township, Caro, Cass City, Sebewaing, Unionville, Pigeon, Bad Axe. Travis I. Dafoe is a member of the National Academy of Elder Law Attorney and WealthCounsel. Dafoe Law, PLLC is also a member of the Life Care Planning Law Firm Association. Start estate plan