In re Miller Osborne Perry Trust
299 Mich. App. 525
| Mich. Ct. App. | 2013Background
- Miller Osborne Perry established the Trust in January 1993; Susan Perry is his daughter and Mark Perry's aunt.
- In November 2006, the Trust was amended to grant Susan 75%, Mark 12.5%, and Debra C. Pinedo 12.5%; § 4.4 created a no-contest forfeiture for challenges to probate or trust provisions.
- Miller Perry died in March 2010 at age 102.
- Mark Perry petitioned for declaratory relief to determine probable cause under MCL 700.7113 for challenging the Trust.
- Susan Perry asked the court to treat Mark's petition as a contest under § 4.4; the probate court denied declaratory relief but found no § 4.4 contest.
- On appeal, the court affirmed, holding Mark's petition did not constitute a challenge triggering the no-contest clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does declaratory relief regarding probable cause amount to a trust challenge? | Mark Perry alleges no contest; petition seeks only probable cause guidance. | No-contest clause applies to challenges to probate or provisions, including hypothetical challenges if framed as a contest. | No, declaratory relief did not amount to a § 4.4 challenge. |
| Did § 4.4 forfeiture apply to Mark's petition? | Petition was not a challenge to the Trust. | Any contest or challenge to the Trust’s provisions triggers § 4.4 forfeiture. | No forfeiture; petition did not fall within § 4.4's terms. |
| How should no-contest clauses interact with 700.7113? | Probable cause under 700.7113 governs whether a no-contest clause should operate. | If no actual challenge exists, 700.7113 cannot be used to negate a no-contest clause. | 700.7113 nullifies only actual challenges with probable cause; no-challenge remains unaffected here. |
Key Cases Cited
- Farr v Whitefield, 322 Mich 275 (1948) (validity of no-contest clauses; general enforceability)
- Saier v Saier, 366 Mich 515 (1962) (strict construction of no-contest clauses)
- Shavers v Attorney General, 402 Mich 554 (1978) (avoidance of hypothetical questions; actual justiciable controversy)
- In re Kostin Estate, 278 Mich App 47 (2008) (trust interpretation; no-contest clause strict construction)
- In re Reisman Estate, 266 Mich App 522 (2005) (statutory interpretation of trusts and duties)