Friday, February 14, 2014
A challenge to the appointment of a personal representative does not trigger an in terrorem clause. A father’s pour over will nominated his daughter, G, as his personal representative. G was also the successor trustee of the revocable trust receiving the pour over. The trust contained a no contest clause applying to, among other acts, an unsuccessful challenge to “any provision” of the will or trust. Violation would mean receiving no portion of the father’s “estate” nor any benefit under the trust. The father’s other daughter, C, filed a petition for formal administration of her father’s estate requesting that she be appointed co-personal representative, alleging that G, who had not yet been appointed to serve as the personal representative, had been acting as if she were. The court eventually admitted the will to probate and appointed G as sole personal representative. G then petitioned to enforce the no contest clause against C. The trial court denied the petition and on appeal the intermediate appellate court affirmed, holding that C had probable cause for her petition because G had been acting without authority, and any behavior that would support removal of a personal representative also gives an interested person sufficient reason to oppose initial appointment. In re Estate of Stan, 839 N.W.2d 498 (Mich. Ct. App. 2013).
Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.