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 through 2011 issues of Michigan Super Lawyers magazine featuring the top 5% of attorneys in Michigan and is listed in the 2011 and 2012 compilations of The Best Lawyers in America. He 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. He is listed by Martindale-Hubbell in the area of Probate Law among its Preeminent Lawyers. He is a member of the Society of American Research (SABR). For those interested in viewing previous Probate Law Case Summaries, click on the link below. http://www.kempklein.com/probate-summaries.php DT: August 9, 2012 RE: In re Estate of Johnson Julia L. Johnson v Ronda A. Wickham STATE OF MICHIGAN COURT OF APPEALS

BASEBALL STATS: HOMERUN HITTERS MOVING UP IN THE STANDINGS finally caught fire and is hitting a respectable amount of homeruns. All during the year Albert Pujols has been battling to become leader in lifetime homeruns by active players. It was only a matter time until Albert took over as Chipper is 40 years of age. Albert now has 469 homeruns and Chipper 464. Albert ranks 31st in the all time homerun hitter list and Chipper ranks 33rd. Albert has passed and now trails by four homeruns. I think that Albert will probably pass Delgado, and Stan Musial to move into 28th place.

201 West Big Beaver, Suite 600, Troy, Michigan 48084 | Phone: 248.528.1111 | Fax: 248.528.5129 | www.kempklein.com In re Estate of Johnson Julia L. Johnson v Ronda A. Wickham STATE OF MICHIGAN COURT OF APPEALS –continued–

Pujols’ average is one homerun in every 17 hits , and for those who have been following this statistical summary he has improved from 24 at bats and is headed into real homerun territory. Adam Dunn is on a tear and he now has 396 homeruns and will certainly pass 400 this year. This will move him into 50th place. has now moved over 300 homeruns; with 303. now has 248. Don’t look for much more from who has 644 as he is out with a broken wrist and probably will not pass this year, who ranks fourth with 660 homeruns

REVIEW OF CASE: Reference Files: Constructive Trust Inter vivos Promises Probate Court Jurisdiction

This is a fact based case which I believe is decided correctly, but lacks some depth in discussion. Decedent went through a contentious divorce and child custody litigation. He died. Decedent, post divorce, changed his employment insurance to his new wife. The ex-wife sued, asking that a constructive trust be placed on the proceeds as decedent “agreed that it was for his children”, and suffered undue influence and breached a fiduciary duty. A C (10) Motion was brought, and the Lower Court did not find facts sufficient to overcome facts raised by Defendant on the C (10) Motion. It is first worthy of note that the Probate Court took jurisdiction over a claim relative to insurance benefits. The undue influence and breach of fiduciary duty were abandoned on appeal. The Court of Appeals sustained the Opinion of the Lower Court. The Court of Appeals’ Decision lacks definition in two regards: - First, the Court of Appeals failed to point out that constructive trust is a remedy and not a cause of action; - Second, that the actual cause of action, which would have obtained the constructive trust if valid, would have been breach of contract.

AAM:jv:719083 Attachment

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