Anthony Edward Vogel, Sr. Living Trust

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 2010 issues of Michigan Super Lawyers magazine featuring the top 5% of attorneys in Michigan and is listed in the 2011 compilation 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 Baseball 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: February 25, 2011 RE: Anthony Edward Vogel Sr. Living Trust STATE OF MICHIGAN COURT OF APPEALS ALL STAR OLDSTERS: Next you are going to find a team composed of the oldest people to play at their positions: FIRST BASE – DAN BROUTHERS: Dan had a lifetime batting average of .349 and played his last game when he was 46. SECOND BASE – JOHNNY EVERS: Of the famous Tinkers to Evers to Chance combination – Johnny played his last game at 48. SHORT STOP – HUGHIE JENNINGS (Tigers very own): Hughie Jennings clocked out at 49 years of age. THIRD BASE – ARLIE LATHAN: 49 years of age. 201 West Big Beaver, Suite 600, Troy, Michigan 48084 | Phone: 248.528.1111 | Fax: 248.528.5129 | www.kempklein.com In Re. Anthony Edward Vogel Sr. Living Trust –continued– STATE OF MICHIGAN COURT OF APPEALS CATCHER – (Boston’s) CARLTON FISK: Played his last game at 45. PITCHER – SATCHEL PAIGE: At age 59 – but this was really a call back. Nolan Ryan pitched his last game when he was 46. My outfield is composed of: Sam Thompson (46) –had a lifetime batting average of .335; Minnie Minoso (51) –lifetime batting average of .298 and played in five decades; Pete Rose (46) – only because I have no other place to put him. REVIEW OF CASE: Reference Files: Limitation of Testimony Attorney Client Privilege Violation of No Contest Provision Transfers of Trust Property Standard of Review This case came down on May 27, 2010. Because I was citing it in a case in which I was in trial, I wanted to wait until its conclusion to write this citation. As to issues of valuation of real estate, there was a proffer of proof of comparable sales. The comparable sales data was not produced pursuant to an order. The Lower Court ruled the evidence of comparable sales were, therefore, inadmissible at trial. The Court of Appeals used an interesting standard in judging the actions of the Trial Court. It said that the Trial Court’s exclusion of the evidence was reasonable rather than “not unreasonable.” The attorney for Settlor testified at a deposition. A party claimed that this constituted a waiver of the attorney client privilege. The Court of Appeals said that this was an incorrect determination of law. The attorney or client can raise the privilege, but only the client can waive the privilege. The court found that when the client testified of the subject matter of conferences with his attorney that waived the privilege, but not when the attorney testified. The court said it might have made a difference if the defendant, himself, was present at the deposition and went further to say that the testimony itself did not constitute a waiver if he did not go into the conversations. The court reviewed the trustees making improper transfers to his son, as well as failures to make accountings. The Trial Court ruled that there was a lot of fast and loose playing, but that this was familial situation and that’s “the way some families are.” The Court of Appeals did not find a family situation “exception” to rules governing proper administration of a Trust. The Court of Appeals ordered removal. There existed ample powers to distribute property which were binding on all parties. However, this cannot conflict with the residuary paragraphs of the Will. The power to distribute did not allow the trustee to distribute Trust assets to non beneficiaries. With reference to the no contest provision, challenges to the action of a trustee do not violate the no contest provision as there is no challenge to the provision of the Trust itself. The court cited another unpublished opinion of the In re Payment Estate, November 17, 2009, docket #282529, which held that a challenge to the personal representative’s performance of his duties was not a direct or indirect contest or attack; such that the no contest clause was not invoked. Complaining about the trustee is enforcing the Trust, not challenging the Trust. AAM:jv:682224v2 Attachment 2 .

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