COA Explains Leave to Amend

By Doug Chalgian on March 23, 2022

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This post is about when a litigant can amend their pleadings, and specifically, the meaning of the phrase: “Leave shall be freely given when justice so requires” as it appears in MCR 2.118(A)(2).

A surviving spouse disputes the accuracy of an inventory of the deceased spouse’s trust.  Trustee asserts that, by doing so, the surviving spouse has triggered a no contest clause* and therefore no longer has an interest in the Trust.  Based on this, the Trustee moves for summary disposition.  The surviving spouse requests leave to amend its pleadings to contest the validity of the Trust itself.  The trial judge denies the request to amend, and grants summary disposition in favor of the Trustee.

In In Re Linda Comps-Klinge Trust (click on the name to read the case), the Court of Appeals reverses the trial court on the basis that it erred by refusing to grant the surviving spouse leave to amend.  In doing so, the COA provides a helpful discussion and explanation of those rules.  It goes something like this:

Every party has a right to amend their pleadings once so long as they do so within the confines of MCR 2.118(A)(1).  Outside of that, a party may only amend its pleadings with the consent of the other party(ies) or by leave of the court.

Pursuant to MCR 2.118(A)(2), “Leave shall be freely given when justice so requires.”

Further, and I think this is where the opinion is most helpful, “a court’s discretion is limited under the standard that “leave shall be freely given when justice so requires.””

How so limited? (you ask).

This explanation directly from the case (citations omitted):

A motion to amend ordinarily should be granted. A trial court should only deny a motion to amend on the basis of undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendant, or futility. Delay alone does not justify the denial of a motion to amend. Further, prejudice does not mean that the “amendment may cause the opposing party to ultimately lose on the merits.” Instead, prejudice exists when an “amendment would prevent the opposing party from receiving a fair trial.” A party may be unable to receive a fair trial if, because of the delay, witnesses or necessary evidence was no longer available. Prejudice may exist “when the moving party seeks to add a new claim or a new theory of recovery on the basis of the same set of facts, after discovery is closed, just before trial, and the opposing party shows that he did not have reasonable notice, from any source, that the moving party would rely on the new claim or theory at trial.”


A trial court hearing a motion for summary disposition must grant parties the opportunity to amend pleadings so long as the amendment would not be futile. An amendment is futile when, “(1) ignoring the substantive merits of the claim, it is legally insufficient on its face; (2) it merely restates allegations already made; or (3) it adds a claim over which the court lacks jurisdiction.

Accordingly, the trial court is reversed for failing to allow the surviving spouse to amend its pleadings.

The case is unpublished.

[*Importantly (I think), the COA does not rule on whether by contesting the inventory of the Trust the surviving spouse did, or could have, triggered a no contest clause as that issue was not preserved by the contestant/appellant.]


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mm By: Doug Chalgian
Doug Chalgian

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