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 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: April 29, 2010

RE: In re William J. and Marian A. Dudley Trust STATE OF MICHIGAN COURT OF APPEALS ______

MAJOR LEAGUE BASEBALL: Dah fawken bums r gonna fade just like day did last yeah wit the phills. The fawken Jihants r gonna win dah pennant. Arnold Getzel Camp Racquet Lake New York July, 1951 1951 was the greatest year baseball ever had and the prescience of Getzel was only part of it. In May, 1951 the Giants brought up a 19 year old phenomenon named . The Giants put him in

201 West Big Beaver, Suite 600, Troy, Michigan 48084 | Phone: 248.528.1111 | Fax: 248.528.5129 | www.kempklein.com In re William J. and Marian A. Dudley Trust STATE OF MICHIGAN COURT OF APPEALS

center; moved Bobby Thompson to third. Willie made Rookie of The Year and Bobby hit the shot heard around the world in the third game of the pennant play off against the fawken bums thus, sending the Giants to the World Series against the Yankees and forever immortalizing Arnold Getzel in baseball lore. The Yankees, well it was Joltin Joe’s last year and ’s rookie year. Then rookie shortstop Gil MacDougal was Rookie of The Year and the Yankees won the pennant. MacDougal would be the first rookie to hit a grand slam homer in the World Series. It was the 50th Anniversary of the and the 75th Anniversary of the National. Statistical treatises grew like weeds, including The First Official Encyclopedia of Baseball. This allowed me to immerse myself in my love of baseball statistics. It was a year of hope for the Tigers. The Bengals nearly won the 1950 pennant and the eyes of the baseball world were on Detroit. The Tigers too faded, but did well in the 1951 All Star Game played in Detroit. Kell and Wertz played and Kell homered, crossing home plate and shaking hands with the next batter up, . Kell would lead the league in hits with 191 and doubles with 36. Tiger lore would be embellished when Bill Veeck would bring in midget Eddie Gadel to face Tiger in a regular season game against the Browns. Ned Garver would win 20 games for the Browns and then join the Tigers. It would take me 50 years to collect the 1951 Bowman Set, but I did it.

REVIEW OF CASE: Reference Files: Use of Extrinsic Evidence to Show Settlor’s Intent Testimony of Scrivener This is a case of great import. It has but two flaws. First, it is unpublished. Second, one could argue that it could be limited to its facts in allowing extrinsic evidence to show a latent ambiguity, by way of scrivener’s testimony, because of the use of the phrase “these circumstances together reasonably give rise to a latent ambiguity.” Distribution of the assets of a Trust could have been made according to the trust without reference to extrinsic evidence. A party, however, said that someone made a mistake and the decimal point should have been moved over. Testimony of the scrivener would have created the ambiguity and the Court of Appeals did say that such testimony should come in. The Court lays penultimate emphasis upon the intent of the Settlor and the use of the scrivener’s testimony, as an axiom to that corollary. “A better source of Settlor’s intent at the time they created their Trust was the attorney who drafted the Trust documents, who was in the armed services and stationed out of the country at the time of the hearing.” The case of In re Kremlick Estate, 417 Mich App 240 is cited. Kremlick is a case which is usually cited when one tries to get in extrinsic evidence to prove a latent defect, to wit Settlor’s intent by way of scrivener. It is again worthy of notice that the Court of Appeals said: “This court reviews, de novo, the language used in wills and trusts as a question of law.”

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