IN RE JOHN W AND LEONA M WETZEL REVOCABLE LIVING TRUST
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STATE OF MICHIGAN
COURT OF APPEALS
In re JOHN W. and LEONA M. WETZEL
REVOCABLE LIVING TRUST.
ALAN CLEVENGER, as Successor Trustee of the
Revocable Living Trust of JOHN W. WETZEL
and LEONA M. WETZEL,
UNPUBLISHED
March 13, 2008
Plaintiff/Counter-DefendantAppellee,
v
MELISSA MCCRORY, as Successor Personal
Representative of the Estate of LEONA M.
WETZEL, Deceased, and as Successor Trustee of
the LEONA M. WETZEL Revocable Living Trust,
ANDREW D. MCCRORY, and DEBORAH
HUFFMAN,
No. 270809
Jackson Probate Court
LC No. 04-006358-CZ
Defendants/Counter-PlaintiffsAppellants,
and
ROBIN CLEVENGER, as Personal Representative
of the Estate of WILLIAM CLEVENGER,
Deceased,
Defendant.
Before: Saad, C.J., and Murphy and Donofrio, JJ.
PER CURIAM.
Defendants/counter-plaintiffs (“defendants”), Melissa McCrory, Andrew D. McCrory,
and Deborah Huffman, appeal as of right the probate court’s order granting summary disposition
in favor of plaintiff/counter-defendant (“Alan”), Alan Clevenger. Defendants also challenge the
opinion finding that the John W. Wetzel and Leona M. Wetzel Revocable Living Trust (“joint
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trust”) owned real property located on Robinson Road in Jackson (“the Robinson Road
property”), the order quieting title to the Robinson Road property, the opinion determining that
the Leona M. Wetzel Revocable Living Trust (“sole trust”) did not revoke or amend the joint
trust, and the order finding that the joint trust owned the joint stock account at A.G. Edwards
(“the joint stock account”). Because the trusts contain no ambiguities, and the disputed property
was never transferred out of the joint trust and the joint trust was neither revoked, nor amended,
we affirm.
I. Basic Facts and Proceedings
In 2000, Leona M. Wetzel and John W. Wetzel (collectively “the Wetzels”), a married
couple, executed wills and the joint trust. The joint trust named Melissa and Alan, Leona’s
children and John’s stepchildren, as successor co-trustees and equal beneficiaries. After
executing the joint trust, the Wetzels changed the name on the joint stock account to the joint
trust’s name and executed four deeds conveying their joint ownership of the Robinson Road
property to the joint trust. The deeds were witnessed and notarized, but they were never
recorded, and the original deeds were lost.
John predeceased Leona, and after his death Leona learned that Alan had received the
proceeds of John’s IRA, amounting to $300,000, and $50,000 from a bank account. Alan would
not share these proceeds with Leona, and Leona met with her attorney, Paul Joseph, to create a
new estate plan that disinherited Alan. Leona executed the sole trust and a pour-over will, that
was designed to automatically fund the sole trust on Leona’s death. Melissa was the sole
beneficiary and sole successor trustee of the sole trust, and she was named the personal
representative of Leona’s estate. Deeds were drafted transferring ownership of the Robinson
Road property to the sole trust, but Leona never signed the deeds. Leona also failed to formally
change or transfer the title on the joint stock account to the sole trust. Leona died, and Alan filed
a complaint seeking to quiet title to the Robinson Road property. Defendants filed a
counterclaim seeking a declaratory judgment that the joint trust was terminated and invalid, the
Robinson Road property and the joint stock account were not assets of the joint trust, and Alan
had no ownership interest in any of the assets of the joint trust.
Alan moved for summary disposition arguing that title to the Robinson Road property
had been transferred to the joint trust because the deeds were delivered and there was no question
that the Wetzels intended to convey the property to the joint trust. Defendants moved for partial
summary disposition seeking a quiet title judgment regarding the Robinson Road property.
Defendants argued that, because the four 2000 deeds were never recorded, Leona was the record
owner of the Robinson Road property when she died. The probate court found that there was no
issue of material fact regarding the evidence of the Wetzels’ intent or that the deeds were
delivered from the Wetzels in their individual capacities to them in their capacities as co-trustees
of the joint trust. The probate court granted summary disposition to Alan and determined that
the joint trust, not Leona, owned the Robinson Road property at the time of her death. The
probate court later entered an order quieting title and providing that the joint trust owned the
Robinson Road property in fee simple.
Melissa moved for summary disposition on defendants’ counterclaim arguing that the
statutory presumptions of MCL 700.2507 applied and Leona had revoked the joint trust when
she executed the sole trust. The probate court found that the sole trust did not expressly revoke,
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or even mention, the joint trust. The probate court concluded that there was no evidence of a
revocatory act and the two trusts were not inconsistent because they did not involve the same
property and there was no evidence of revocatory intent. The probate court found that the two
trusts were not ambiguous and denied Melissa’s motion for summary disposition.
Melissa moved for partial summary disposition seeking a declaratory judgment that the
joint stock account was an asset of the sole trust and arguing that the mere identification of the
joint stock account on the sole trust’s asset schedule was sufficient to transfer ownership to the
sole trust. Alan responded, also requesting summary disposition, arguing that Leona’s signing of
the declaration of intent did not automatically change ownership of the joint stock account. The
probate court granted summary disposition to Alan because the joint stock account was titled in
the name of the joint trust and Leona failed to take any action to transfer the account to the sole
trust. Therefore, the probate court found that the joint stock account was owned by the joint
trust.
II. Analysis
Defendants argue that the probate court erred in granting summary disposition because
there is ample evidence that Leona intended to disinherit Alan and the probate court’s decisions
frustrate that intent. This Court reviews de novo a probate court’s decision on a motion for
summary disposition. In re Estate of Capuzzi, 470 Mich 399, 402; 684 NW2d 677 (2004).
When reviewing a decision on a motion for summary disposition pursuant to MCR 2.116(C)(10),
this Court considers the affidavits, pleadings, depositions, admissions, and other evidence in the
light most favorable to the party opposing the motion. Zsigo v Hurley Medical Ctr, 475 Mich
215, 220; 716 NW2d 220 (2006). Summary disposition is appropriately granted if, except for the
amount of damages, there is no genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law. Id.
A. Settlor’s Intent
Generally, the probate court’s objective is to effectuate the settlor’s intent when
construing a trust. In re Nowels Estate, 128 Mich App 174, 177; 339 NW2d 861 (1983).
However, “[t]he law is well established that one must look to the trust instrument to determine
the powers and duties of the trustees and the settlor’s intent regarding the purpose of the trust’s
creation and its operation.” In the Matter of Estate of Butterfield, 418 Mich 241, 259-260; 341
NW2d 453 (1983). If the language of a trust is unambiguous, courts must glean the settlor’s
intent from the four corners of the trust document. In the Matter of Maloney Trust, 423 Mich
632, 639; 377 NW2d 791 (1985). Defendants have identified no ambiguities, patent or latent,
that would permit this Court to consider the evidence of Leona’s intent. As will be discussed,
infra, the sole trust is not inconsistent with the joint trust, and they do not dispose of the same
property. Therefore, defendants’ argument that there is a latent ambiguity fails.
B. The Robinson Road Property
Defendants contend that the Robinson Road property was never properly transferred into
the joint trust, but rather was owned by Leona after John died and therefore, by operation of her
pour-over will, was part of the sole trust when Leona died. Alan asserts that the four 2000 deeds
effectively transferred the property into the joint trust where it remains. “[T]he test of
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conveyance is whether it can be said that delivery of the deed was such as to convey a present
interest in the land.” Wandel v Wandel, 336 Mich 126, 131; 57 NW2d 468 (1953); also see
Hynes v Halstead, 282 Mich 627, 637; 276 NW 578 (1937). Delivery is required to show that
the grantor intended to convey the property described in the deed. Energetics, Ltd v Whitmill,
442 Mich 38, 53; 497 NW2d 497 (1993). A deed becomes effective when delivery occurs, not
when the deed is executed or recorded. Ligon v Detroit, 276 Mich App 120, 128; 739 NW2d
900 (2007). Contrary to defendants’ arguments, recording is not necessary for a deed to be valid
or effective. Sinclair v Slawson, 44 Mich 123, 126; 6 NW 207 (1880); Ligon, supra at 128. As
the party relying on the four 2000 deeds, Alan had the burden of establishing delivery. Ligon,
supra at 130.
When the Wetzels created the joint trust, they executed four quitclaim deeds conveying
their joint ownership of the property to the joint trust. On the same day, they also completed a
declaration of intent and a schedule of real estate, both of which indicated that the property had
been transferred. Further, Leona testified at her deposition, given in an ancillary matter two
months prior to her death, that she believed they had successfully transferred the property into
the joint trust, and Marcus Maurer, a notary who witnessed the signing of these deeds, indicated
that the Wetzels intended to transfer the property to the joint trust. Delivery in the instant case is
a bit unusual because the grantors were transferring the deeds from themselves as individuals to
the grantees, who were themselves in their capacity as the trustees of the joint trust. Although
the original deeds have not been located, there is sufficient evidence of intent to convey the
property to the joint trust, and delivery was accomplished.
Defendants contend that delivery did not occur because the Wetzels did not place the
deeds beyond their power to recall. See Wandel, supra at 131; Hynes, supra at 637-637 (holding
that, where the grantor had given the deed to an escrow agent to deliver to the grantee after the
grantor’s death, there was no delivery). Defendants’ argument is misplaced on two grounds.
First, the joint trust owned the Robinson Road property after the deeds were executed, and
although the Wetzels were the trustees, they could not revoke the deeds in their individual
capacities. To hold otherwise would require a settlor to have a different trustee to fund any
living revocable trust with real property. Second, there was ample evidence that the Wetzels
intended to deliver the deeds to the joint trust and vest title in the joint trust. Therefore,
defendants’ argument is not persuasive.
We are similarly unconvinced that the absence of the original deeds affects this decision.
Pursuant to MRE 1003, the duplicates were properly admitted into evidence because there were
no issues raised regarding their authenticity and, under the circumstances of this case, it would
not be unfair to admit the duplicates.
Although deeds were drafted transferring the Robinson Road property to the sole trust, it
is undisputed that Leona never signed them. Therefore, delivery did not occur and the property
remained in the joint trust at Leona’s death. See Wandel, supra at 131; Ligon, supra at 128. The
probate court properly concluded that delivery to the joint trust had occurred and the Robinson
Road property was titled in the joint trust.
C. Revocation of the Joint Trust
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Defendants next contend that the sole trust revoked the joint trust. Defendants rely on
MCL 700.2507, which creates a rebuttable presumption of revocation regarding a will as
follows:
(1) A will or a part of a will is revoked by either of the following acts:
(a) Execution of a subsequent will that revokes the previous will or a part
of the will expressly or by inconsistency.
(b) Performance of a revocatory act on the will, if the testator performed
the act with the intent and for the purpose of revoking the will or a part of the will
or if another individual performed the act in the testator's conscious presence and
by the testator’s direction. For purposes of this subdivision, “revocatory act on
the will” includes burning, tearing, canceling, obliterating, or destroying the will
or a part of the will. A burning, tearing, or canceling is a revocatory act on the
will, whether or not the burn, tear, or cancellation touches any of the words on the
will.
(2) If a subsequent will does not expressly revoke a previous will, the execution
of the subsequent will wholly revokes the previous will by inconsistency if the
testator intended the subsequent will to replace rather than supplement the
previous will.
(3) The testator is presumed to have intended a subsequent will to replace rather
than supplement a previous will if the subsequent will makes a complete
disposition of the testator’s estate. If this presumption arises and is not rebutted
by clear and convincing evidence, the previous will is revoked, and only the
subsequent will is operative on the testator’s death.
(4) The testator is presumed to have intended a subsequent will to supplement
rather than replace a previous will if the subsequent will does not make a
complete disposition of the testator’s estate. If this presumption arises and is not
rebutted by clear and convincing evidence, the subsequent will revokes the
previous will only to the extent the subsequent will is inconsistent with the
previous will, and each will is fully operative on the testator’s death to the extent
they are not inconsistent.
Assuming that MCL 700.2507 applies to trusts, none of the circumstances apply to the instant
case. Leona never performed any of the revocatory acts listed in MCL 700.2507(1)(b), and
neither her pour-over will nor the sole trust expressly revokes or even mentions the joint trust.
Section 1.08(3) of the joint trust provides that the trustors retain the power to revoke as
follows:
To revoke this trust, by giving the trustee written notice of such
revocation, in which event the trustee shall promptly transfer and deliver the
property constituting the trust estate to us or our designee, together with an
accounting therefore; provided, however, that following the death of one of us,
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the survivor shall have no power to revoke the terms of the trust declaration with
respect to the trust share of the first of us to die. [Emphasis added.]
Leona failed to comply with the requirement that revocation must be in writing. While a trustee
may voluntarily waive a trust’s written notice requirement, there is no evidence that Leona did
so. Sabin-Scheiber v Sabin, 128 Mich App 427, 433-434; 340 NW2d 114 (1983). Rather, the
two trusts were not inconsistent such that a waiver could be inferred or the presumption of
revocation contained in MCL 700.2507(1)(a) or (2) is invoked. The trustors of the joint trust
were John and Leona, and the sole trustor of the sole trust was Leona. The initial trustees of the
joint trust were John and Leona, and the sole initial trustee of the sole trust was Leona. The
successor trustees of the joint trust were Alan and Melissa, where the sole successor trustee of
the sole trust was Melissa. The beneficiaries of the joint trust were Alan and Melissa, and the
sole beneficiary of the sole trustee was Melissa. The joint trust specifically identified the
Robinson Road property as a real estate property transferred into the trust, but the sole trust did
not. The Wetzels executed deeds transferring the Robinson Road property to the joint trust, but
Leona never signed the deeds conveying the property to the sole trust. The joint stock account
was identified by account number as an investment saving that had been transferred into the joint
trust, and a date of transfer was provided. The joint stock account was identified on the asset
sheet for investment savings transferred into the sole trust, but it contained the notation, “Leona
Act – In old trust yet[,]” and no date was listed for transfer. Therefore, the two trusts were not
inconsistent.1
Further, the sole trust did not make a complete disposition of Leona’s estate because the
Robinson Road property and the joint stock account, which will be discussed infra, were not
owned by Leona in her individual capacity, were not transferred into the sole trust while Leona
was alive, and did not pass through her pour-over will into the sole trust. The probate court
properly concluded that MCL 700.2507 did not create a presumption of revocation and the sole
trust did not revoke the joint trust.
D. The Joint Stock Account
Defendants contend that Leona transferred ownership of the joint stock account to the
sole trust when she listed it as an asset on the asset sheet for investment savings transferred into
the sole trust. However, this account was not in her name in her individual capacity. Rather, it
was titled in her name, as the trustee for the joint trust. Further, the asset sheet contained the
notation, “Leona Act – In old trust yet[,]” and no date was listed for transfer. We agree with the
probate court that, at best, this evidences the intent to transfer the account into the name of the
sole trust, but it does not demonstrate that a transfer actually occurred.
Defendants maintain that the joint stock account became an asset of the sole trust
regardless of who holds the title. Defendants’ argument would permit a settlor to place property
1
The merger clause of the joint trust, ¶ 5.03(t) is similarly not implicated because it requires that,
for two trusts to merge, they must be “for the benefit of the same beneficiary or beneficiaries and
upon substantially the same terms and conditions[.]”
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belonging to anyone else into his trust merely by declaring it a trust asset. The sole trust contains
two provisions whose plain language must be considered. First, defendants rely on the
comprehensive transfer document of the sole trust, which provides that Leona, as the sole trustee
of the sole trust, was holding and would hold properties, including accounts and real estate,
solely for the trust and all property was thereby transferred to the sole trust. This document also
provides that all such property was transferred even if “‘record’ ownership or title, in some
instances, may, presently or in the future, be registered in the individual name in which event
such record of ownership shall hereafter be deemed held in trust even though such trusteeship
remains undisclosed.” (Emphasis added.) However, this provision does not apply because the
joint stock account was not registered or titled in Leona’s individual name. Second, the sole trust
defines the trust estate as “all property, transferred or conveyed to and received by the Trustee,
held pursuant to the terms of this instrument.” (Emphasis added.) The joint stock account was
never conveyed to Leona, the sole trustee, in her individual capacity. Therefore, the plain
language of the trust contradicts defendants’ argument.
Further, Louis F. Sheerbaum, the financial consultant who serviced the joint stock
account, explained that that the trustee must take affirmative action to change the title on the
joint stock account, and it is undisputed that Leona never contacted A.G. Edwards to have the
account transferred or otherwise retitled. Even if the joint stock account is not considered a
traditional transfer-on-death or payable-on-death account and the uniform transfer-on-death
security registration provisions do not apply, A.G. Edwards still maintains the authority to
establish its own policies and procedures regarding the transfer of ownership of the accounts held
at its firm. The joint stock account was registered in the name of the joint trust, not in Leona’s
name as an individual, and it remained in the joint trust when Leona died. Therefore, the probate
court did not err in granting summary disposition in Alan’s favor.
Affirmed.
/s/ Henry William Saad
/s/ William B. Murphy
/s/ Pat M. Donofrio
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