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Ilene G. Barron Revocable Trust STATE of MICHIGAN COURT of APPEALS

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Ilene G. Barron Revocable Trust STATE of MICHIGAN COURT of APPEALS Every month I summarize the most important probate cases in Michigan. Now I publish my summaries as a service to colleagues and friends. I hope you find these summaries useful and I am always interested in hearing thoughts and opinions on these cases. PROBATE LAW CASE SUMMARY BY: Alan A. May Alan May is a shareholder who is sought after for his experience in guardianships, conservatorships, trusts, wills, forensic probate issues and probate. He has written, published and lectured extensively on these topics. He was selected for inclusion in the 2007-2012 issues of Michigan Super Lawyers magazine featuring the top 5% of attorneys in Michigan and has been called by courts as an expert witness on issues of fees and by both plaintiffs and defendants as an expert witness in the area of probate and trust law. Mr. May maintains an “AV” peer review rating with Martindale-Hubbell Law Directory, the highest peer review rating for attorneys and he is listed in the area of Probate Law among Martindale-Hubbell’s Preeminent Lawyers. He has also been selected by his peers for inclusion in The Best Lawyers in America® 2013 in the fields of Trusts and Estates as well as Litigation – Trusts & Estates (Copyright 2012 by Woodward/White, Inc., of SC). He has been included in the Best Lawyers listing since 2011. He is a member of the Society of American Baseball Research (SABR). For those interested in viewing previous Probate Law Case Summaries, go online to: http://www.kempklein.com/probate-summaries.php DT: February 22, 2013 RE: Ilene G. Barron Revocable Trust STATE OF MICHIGAN COURT OF APPEALS ALL ITALIAN TEAM: Yogi Berra Left field Joe Dimaggio Center field Dom Dimaggio Right field Phil Caveretta First base Phil Rizutto Shortstop Ron Santo Third base Tony Lazzeri Second base Ernie Lombardi Catcher 201 West Big Beaver, Suite 600, Troy, Michigan 48084 | Phone: 248.528.1111 | Fax: 248.528.5129 | www.kempklein.com Ilene G. Barron Revocable Trust STATE OF MICHIGAN COURT OF APPEALS –continued– All Italian Team –continued– Johnny Antonelli Left handed pitcher Sal Maglie Right handed pitcher Tony Lasorda Manager Bobby Valentine Coach Tony LaRussa Coach Rocky Colavito Right handed designated hitter Dolph Camilli Left handed designated hitter A fan, Sal Durante, caught Roger Maris’ 61st homerun and gave it to him without asking for anything. REVIEW OF CASE: Reference Files: Fees: Fiduciary – Attorney Res Judicata Trust Imposed Restrictions EPIC Imposed Restrictions This is a well reasoned case on the above topics. Although unpublished, the precedent cited is germane and supports the reasoning of the panel. Fees Appellant charged one rate for all services, legal and fiduciary. The Lower Court reduced the fiduciary rate. Inter alia, the Court of Appeals said: 1. This was not a de novo question and there was no abuse of discretion which was the standard employed. 2. No testimony was necessary to make a judgment on fees in view of the Lower Court’s familiarity with fees. 3. Use of the standards to judge an attorney fee rather than those found in the Trust Code is not reversible error due to their similarity. 4. The Trust document can state what the fees are to be paid. Res Judicata Appellee failed to object to an accounting which included fees. The Appellee was barred by Res Judicata: 1. The Court of Appeals did not say what the Lower Court’s position was on this issue was. 2. My reasoning is that Res Judicata applies not because the account was allowed, but because it was allowed and no timely appeal was taken. Restrictions on Objections 1. The Trust imposed a 90 day restriction on filing objections. No hearing was held to determine whether there was notice of the fees within the 90 day period. The Court of Appeals made no judgment on this issue for the reason that no hearing was conducted, 2 Ilene G. Barron Revocable Trust STATE OF MICHIGAN COURT OF APPEALS –continued– and remanded back for such a hearing. The Court of Appeals did give guidance, citing In re Temple and MCL 700.7201(2); thus by implication supporting the efficacy of internal restrictions stated in the Trust. 2. The court also cited MCL 700.7905(1)(a), giving an objecting party one year to object. By citing both Temple and MCL 700.7201(2) together with 700.7905(1)(a), the clear implication is that Settlor can dictate more restrictive terms. Unanswered Question If the fees that the Lower Court reduced and fees were within the 90 day prohibitive restriction what happens to the reduction issued by the Lower Court and affirmed by the Court of Appeals? AAM:jv:732880 v3 Attachment 3 .
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