In a recent litigation team meeting, we were discussing how often the cases we’re getting these days are not about (or not only about) the validity of a will or trust or deed, nor are they necessarily about the manner in which a fiduciary is currently performing their duties, instead a significant amount of our cases are about alleged historical misconduct. The common story line is that the parent is now dead or clearly incompetent, but for several years prior, one of the children had been primarily involved in the parent’s affairs and now that the other children are taking a look at the situation it appears to them that their sibling had been taking financial advantage of their parent for some lengthy period of time.
Evidence of wrongdoing in some of these cases is quite apparent and easily available. Those are good cases and we take them.
But often evidence gets weaker the further back one looks. On that point I talk to clients not just about the difficulty of finding evidence of historical wrongdoing (the long lost paper trail), but also about the reality that at some point in the past their parent was a competent adult, and proving that this competent adult didn’t just do things to favor one child over another can be very difficult to establish – and may not be true.
It was in that context that I happened upon In Re Conservatorship of JK, a new unpublished opinion of the Court of Appeals. Click on the name to read the case.
In this case, Child A becomes conservator over JK in 2023, and claims that her sibling, Child B, converted $87,000 back in 2017 – well before JK had any cognitive impairment. The evidence presented is merely records that money was moved from JK’s account to Child B’s account. Child B admits the money was moved but says it was a gift. That’s about all there is to this case. And yet the trial judge, based almost entirely on their assessment of the respective credibility of the parties, concluded and found that Child B had converted JK’s money and was liable to repay it.
The Michigan Court of Appeals, in this unpublished opinion, affirms the trial court’s decision and thereby concludes that Child A met their burden of proving conversion simply by being a more credible witness than Child B.
SOL
What about the three-year statute of limitations on conversion? you ask. Apparently, Child B did not plead the statute of limitations as an affirmative defense and therefore, even though it was argued at the evidentiary hearing, that defense was waived.
Misgivings and Conclusions
I don’t like this case.
In my experience, parents commonly favor one child or children over other children, sometimes favoring their ne’er do well “loser” kids over the ones who walk the straighter path or who simply enjoyed more good fortunate in the game of life. Sometimes, a parent has a closer bond with children who continue to need the parent’s help into adulthood.
If I had to guess, JK gave Child B the money. He may have bullied it out of her, but JK did nothing about it for several years during which time she was competent and presumably would have noticed the funds were missing. Buck up Child A.
I’ve become comfortable advising clients to let things long past lie. I like talking them out of litigation. I think I’ve become pretty good at it. But if it’s only as simple as convincing a judge to believe my client’s thin proposition of how things might have gone down over the word of a sibling my client doesn’t like, maybe I need to talk more client’s into taking up the fight.
But I don’t think I will. I’ll call this case a one off and move on. It’s hard to change when you’re old.
373855
