October 5, 2012
Authored by: Luke Lantta
When updating a particular estate planning document, it’s a good idea to double check that all estate planning documents reflect the testator or grantor’s desired changes. So, for example, if you update a will, then it’s good practice to double check that you update any corresponding or affected language in a related trust document. And, if you’re in the habit of using cover pages for trust documents, it’s best to make sure that the cover page actually reflects the text of the trust instrument.
In In re Eleanor V. Mirek Trust (unpublished), Joanne Kloss contended that Eleanor V. Mirek intended that she be the successor trustee of Mirek’s revocable trust upon Mirek’s death. The Michigan probate court that heard the case, however, found that Mirek intended for her nephew, Warren Kriskywicz, to serve as the successor trustee.
To reach this decision, the probate court had to sort through inconsistent and conflicting language in Mirek’s estate planning documents.
The cover page of the Eighth Amendment to Mirek’s trust stated that it was a “TRUST INDENTURE naming ELEANOR V. MIREK as GRANTOR and INITIAL TRUSTEE and JOANNE KLOSS as SUCCESSOR TRUSTEE of ELEANOR V. MIREK TRUST AGREEMENT . . . .”
The text of the Eighth Amendment, however, did not name Kloss as successor trustee; instead, the text provided that all terms in the trust “which have not been altered or modified shall remain in full force and effect and are hereby confirmed by Grantor and Trustee.” Thus, one of the provisions confirmed by the text of the Eighth Amendment was the provision in the Seventh Amendment that laid out the successor trustees. This provision in the Seventh Amendment named Warren Kryskywicz as the successor trustee with Kloss as the successor to him: “[a]t my death, or when I am no longer able to serve as Trustee, my nephew, WARREN KRISKYWICZ shall be successor trustee. If he is unable to [sic] unwilling to serve then my friend JOANNE KLOSS shall be successor Trustee.”
The probate court that initially heard this case determined that there was an ambiguity in the Eighth Amendment and, therefore, received extrinsic evidence in reaching its decision that Kloss was not the successor trustee. Unfortunately, we do not know what extrinsic evidence supported the probate court’s decision because the Michigan Court of Appeals did not tell us in its opinion. We do know that Kloss presented extrinsic evidence that supported her position. Kloss presented evidence that Mirek gave Kloss a list of personal property with instructions about how to distribute it at Mirek’s death, introduced an unsworn statement by Mirek that suggested that she intended Kloss to serve as successor trustee, and presented evidence of the friendship between Mirek and Kloss. The appellate court concluded that none of this amounted to clear and convincing evidence of a mistake in the terms of the Eighth Amendment and Mirek’s statement was unsworn so it didn’t have to consider it.
Mirek’s will further complicated the issue. In her will, Mirek provided:
I give the residue of my estate . . . to the then acting Trustees or Trustee under the certain Trust Agreement . . . as amended . . . with JOANN[E] KLOSS, as Successor Trustee . . . .
The Michigan appellate court determined that this passage from the will actually supported the argument that Kloss was not intended to be the current successor trustee. The reason is this: Mirek clearly contemplated that upon her death the residue of her estate would go to the then acting trustee with Kloss as the successor to that trustee. Kloss was intended to succeed the person who was acting as the successor trustee upon Mirek’s death. The court reasoned that the will, therefore, was consistent with the Seventh Amendment, which named Kriskywicz as successor trustee with Kloss to serve as Kriskywicz’s successor.