In Re Barnhart Estate
In Re Barnhart Estate
Concurring Opinion
(concurring). Because my basis for reversal differs from the majority, I feel compelled to concur separately, relying on the following reasoning. The Attorney General challenged the alleged will and filed a petition to set aside a trust agreement allegedly executed by Charles Barnhart during his lifetime based upon allegations of Barn-hart’s lack of mental capacity, subjection to duress or undue influence, lack of independent legal advice and mistake of fact. The allegations at best are conclusory. The record does not factually support the petitioner’s contentions. The deposition of respondent is not helpful to the petitioner. At this point, however, considering the trust and confidential relationship involved, public confidence in the judicial process would be ill served by a summary disposition affirming the trial court’s order granting respondent’s motion to strike.
Opinion of the Court
On March 24, 1982, the trial court entered an order granting respondent’s motion to strike the Attorney General’s petition. On
Charles Barnhart died on August 25, 1981. Within a few hours after Barnhart died, respondent (Barnhart’s attorney) filed a petition to commence probate proceedings. The will (drafted by respondent about a year earlier) not only listed respondent as executor but also left everything to him. About nine months before he died, Barnhart (with respondent’s help) set up a revocable living trust. The trustee would make payments to Barn-hart as he requested in writing during his life.
Eventually, petitioner intervened into the probate proceedings. He claimed that the State of Michigan was interested in Barnhart’s estate because he had died without heirs and challenged the will claiming that Barnhart was incompetent or lacked the capacity to make a will when it was executed. He also alleged that respondent had subjected Barnhart to duress or undue influence. Later, petitioner filed a petition to set aside the trust agreement because of Barnhart’s alleged lack of mental capacity, subjection to duress or undue influence, lack of independent legal advice, and
MCL 700.181; MSA 27.5181 states:
"(1) When a petition for the appointment of a personal representative of the estate of a deceased person is filed with the court and it appears from the petition that the decedent died intestate without leaving any known heirs, when it appears during the course of administration of an intestate estate that the decedent did not leave any known heirs, or when a petition is filed for the administration of the estate of a testate decedent and from the petition it appears that the devisees of the purported will would not be entitled to share in the estate but for the terms of the will and that the decedent died without leaving any known heirs; the petitioner * * * shall immediately serve notice of hearing * * * upon the attorney general * * *.
"(2) In any such case, the attorney general, representing the state, shall have all the rights of any heir, representative or creditor to be heard and to contest the validity of any claim, order, appointment or any instrument purporting to be a contract or will of the decedent, and shall have all the rights granted or accruing to an heir, representative, or creditor by laws relating to the settlement of testate or intestate estates in the probate court or by way of appeal.”
No one argues that the Attorney General does not have the power to intervene in the probate proceedings regarding the will itself. In re Estate of Matt Miller, 274 Mich 190; 264 NW 338 (1936). See also In re Karabatian’s Estate, 17 Mich App 541; 170 NW2d 166 (1969).
The trial court, however, held that the Attorney General does not have the authority to attempt to set aside the trust itself in the probate proceedings. The trial court interpreted the words in MCL 700.181(2); MSA 27.5181(2), "In any such case” as limiting the Attorney General’s power to sitúa
The trial court erred in not allowing the Attorney General to challenge the validity of the trust. The Michigan Code of Escheats, MCL 567.11 et seq.; MSA 26.1053(1) et seq., at § 3, places a duty on the Attorney General to protect the interest of the state in any property which is escheatable:
"Whenever the attorney general has knowledge of any property which has escheated, is subject to escheat or escheatable to the state, it shall be his duty to protect the interests of the state therein and he shall immediately cause to be instituted appropriate proceedings in accordance with the general laws of this state and as in this act provided, for the purpose of marshalling, protecting and conserving such property, and he shall represent the state and protect its interests, in and to such property as well as that of the owners and/ or their unknown heirs-at-law.” MCL 567.13; MSA 26.1053(3).
This statute is to be construed broadly. MCL 567.74; MSA 26.1053(64).
The trial court’s interpretation of MCL 700.181; MSA 27.5181 would severely limit the Attorney General’s statutory duty to institute proceedings to marshal, protect, and conserve escheatable property. Statutes should not be construed to create such conflicts. Paquin v Northern Michigan University, 79 Mich App 605; 262 NW2d 672 (1977).
Statutes should also be construed to effectuate their purpose. Zawacki v Detroit Harvester Co, 310 Mich 415; 17 NW2d 234 (1945). MCL 700.181(2); MSA 27.5181(2) specifically gives the Attorney General "all the rights granted or accruing to an
The trial judge’s interpretation would frustrate the purpose of this statute. Zawacki, supra. An heir, representative, or creditor has the right to contest the validity of a trust created by the decedent prior to his death. MCL 700.181; MSA 27.5181 grants this right to the Attorney General when property may be subject to escheat. Consequently, the Attorney General has the right to intervene in this case, and contest the validity of the trust and petition for a constructive trust on the proceeds of the sale of the car.
Respondent also argues that petitioner should not be allowed to intervene because a number of others have interests in the property and can adequately protect themselves. However, even if an interest is already adequately represented, the Attorney General may intervene. In re Lewis’ Estate, 287 Mich 179; 283 NW 21 (1938); Van Stock v Bangor Twp, 61 Mich App 289, 299-301; 232 NW2d 387 (1975), lv den 395 Mich 806 (1975).
We also note that an instrument drafted by an
The trial court erred in striking petitioner’s petitions. Therefore, both orders are reversed.
Reversed and remanded.
Actually two different probate court judges issued the different orders. We have referred to both as "the trial court” for convenience.
Petitioner alleges that Barnhart was illiterate beyond the ability to sign his own name.
Reference
- Full Case Name
- In Re BARNHART ESTATE
- Cited By
- 2 cases
- Status
- Published