Susan Perry, acting as the trustee for the Miller Osborne Perry Trust (the “Trust”), appeals as of right the probate court’s finding that Mark D. Perry’s suit for declaratory relief did not constitute а challenge to the Trust within the meaning of the Trust’s forfeiture clause — otherwise known as a no-contest clause. On appeal, Susan Perry argues that the probаte court clearly erred because, after it found that Mark Perry would not have had probable cause to challenge the Trust within the meaning of MCL 700.7113, it had to find that his suit triggеred the no-contest clause. As such, she further maintains, the probate court should have determined that Mark Perry forfeited his distributions under the Trust. Because we conсlude that Mark Perry’s suit for declaratory relief did not constitute a challenge to the Trust as stated in the Trust’s no-contest clause, we affirm.
I. BASIC FACTS
Miller Osborne Perry established the Trust in January 1993. Susan Perry is Miller Perry’s daughter and Mark Perry’s aunt.
In November 2006, Miller Perry amended the Trust to give the majority of his estate to Susan Perry; he
If any beneficiary under this trust or any heir of mine, or any person acting, with or without court approval, on behalf of a beneficiary or heir, shall challenge or contest the admission of this trust to probate, оr challenge or contest any provision of this trust, the beneficiary or heir shall receive no portion of my estate, nor any benefits under this trust. However, it will not be а “challenge or contest” if my personal representative, trustee or a beneficiary seeks court interpretation of ambiguous or uncertain provisions in this trust.
Miller Perry died in March 2010, at 102 years of age.
After discovering evidence that his aunt may have had a questionable influence over Miller Perry during his final years, Mark Perry petitioned in the probate court for declaratory relief. Specifically, he asked the court to determine whether he had “probable cause” to challenge the Trust’s 2006 amendments under MCL 700.7113. In his рetition, Mark Perry stated that his petition should “not... be construed as contesting the validity of the trust, but rather only seeks a declaratory judgment pursuant to MCR 2.605 on the existenсe of probable cause if [he] were to bring such an action.” (Italics added.)
In response to Mark Perry’s petition, Susan Perry denied that she had had an undue influence on her father. She also asked the рrobate court to hold that Mark Perry’s request for declaratory relief constituted a “contest” of the Trust under § 4.4, thus triggering the
II. JURISDICTION
As a preliminary matter, we note that Mark Perry argues on appeal that Susan Perry is not an aggrieved party under MCR 7.203(A) because she appealed as the Trust’s trustee and, in that capacity, she did not suffer a concrete or particularized injury. See Federated Ins Co v Oakland Co Rd Comm,
III. THE NO-CONTEST CLAUSE
A. STANDARD OF REVIEW
This Court reviews de novo the proper interpretation of both statutes and trusts. In re Reisman Estate,
No-contest clauses, such as that found under the Trust’s § 4.4, are generally valid and enforceable. See Farr v Whitefield,
When interpreting the meaning of a trust, this Court must ascertain and abide by the intent of the settlor. In re Kostin Estate,
Under § 4.4, Miller Perry did not provide that a beneficiary would forfeit his or her rights under the Trust if the beneficiary filed any legal action — however
In his suit, Mark Perry stated that he was not challenging the Trust itself. Moreover, in his allegations, he did not ask the probate court to pass judgment on any term within the Trust, did not allege that the no-contest сlause was actually invalid, and did not seek monetary relief. He did, however, ask the probate court in his prayer for relief to order that “the existence of probable cause renders unenforceable the [no-contest] clause.” Because he stated in the body of his petition that he was not actually challenging the trust — and the no-contest clause is a provision in the trust — the probate court would have no authority to grant the requested relief. Thus, this request did not transform his petition into a legal challenge to the Trust.
When the petition is examined as a whole, it is clear that Mark Perry asked the probate court to examine his еvidence and determine whether that evidence would give him probable cause — as that phrase is understood under MCL 700.7113 — if he were to challenge the Trust. That is, he essentially рosed a hypothetical scenario to the probate court and asked it to advise him about the probable application of a statute — MCL 700.7113 — tо his proposed scenario. For that reason, Mark Perry likely failed to allege a justiciable controversy. See Shavers v Attorney General,
Affirmed.
Notes
MCL 700.7113 nullifies the operation of a no-contеst clause (“shall not be given effect”) with regard to challenges for which there was