On February 21, 2023, the Michigan Court of Appeals rendered its decision in In re Nicholson Trust, Docket No 360862 (Mich Ct App Feb 21, 2023) (unpublished). The court addresses a unique and powerful procedural tool that can be used in probate court to get answers to questions in an effort to recover assets rightfully belonging to an estate, trust or an incapacitated person. Under Section 1205 of the Estates and Protected Individuals Code, MCL 700.1205(1), a complaint is filed and the suspected bad actor has to answer to the probate court under oath:
- The court may order a person to appear before the court and be examined upon the matter of a complaint that is filed with the court under oath by a fiduciary, beneficiary, creditor or another interested person of a decedent’s or ward’s trust or estate alleging any of the following:
- The person is suspected of having, or has knowledge that another may have, concealed, embezzled, conveyed away or disposed of the trustee’s, decedent’s or ward’s property.
- The person has possession or knowledge of a deed, conveyance, bond, contract or other writing that contains evidence of, or tends to disclose, the right, title, interest or claim of the trustee, decedent or ward to any of the trust or estate.
- The person has possession or knowledge of a decedent’s last will.
If the defendant fails or refuses to appear for questioning in response to the complaint, the judge can “by warrant commit the person to the county jail to remain in custody until that person submits to the order of the court.” MCL 700.1205(2). The defendant’s wrongdoing could also result in a court order that the defendant is liable for “double the value of the property embezzled, converted, or withheld.” MCL 700.1205(4). The Nicholson Trust case clarified that there does not need to be a trust case already pending before the probate court when a Section 1205 complaint is filed relating to a trust.
For questions relating to this post or other probate litigation matters, contact Laura Morris at 616.752.2407 or lmorris@wnj.com.
