Plan To Be 100

MCL 700.1205 is a section of EPIC that provides a unique method for discovery.  Part 1 of that statute says:

 (1) 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:

(a) 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.

(b) 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.

(c) The person has possession or knowledge of a decedent’s last will.

In this recently issued unpublished decision, the Michigan Court of Appeals looks at the case in which a Trustee filed a complaint pursuant to section 1205 requesting a business partner of the decedent/settlor be examined as to matters related to those business interests held in the deceased settlor’s trust.

After one brief hearing, and halfway through the second day of an oral examination in the courthouse (but without the judge present), the trial judge issued an order dismissing the case.  The examination was discontinued, and an appeal followed.

In the process of remanding the case, this panel of the Court of Appeals provides some clarity about how Section 1205 can be used.

First, the COA holds that a Complaint filed under Section 1205 is a stand-alone civil cause of action.   That is to say, it does not have to arise in the context of another pending civil case or proceeding.

Second, the COA holds that discovery is available in the context of an action filed under Section 1205.

For litigators who turn to section 1205 on occasion, having clarification on these two points is helpful.

To read In Re Raymond J. Nicholson Revocable Trust Agreement, click on the name.

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