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STATE OF MICHIGAN
COURT OF APPEALS
In re RHEA BRODY LIVING TRUST, dated
January 17, 1978, as amended.
ROBERT BRODY,
Intervenor-Appellant/Cross
Appellee,
FOR PUBLICATION
August 7, 2018
9:00 a.m.
v
No. 330871
Oakland Probate Court
CATHY B. DEUTCHMAN,
LC No. 2015-361379-TV
Petitioner-Appellee/Cross Appellee
and
MICHAEL BARTON, Special Fiduciary,
Intervenor,
and
JAY BRODY,
Intervenor-Appellee/Cross
Appellant.
Advance Sheets Version
ON REMAND
Before: O’BRIEN, P.J., MURRAY, C.J., and JANSEN, J.
PER CURIAM.
In an order dated June 8, 2018, the Michigan Supreme Court vacated Part II of this
Court’s prior opinion in this case, In re Brody Living Trust, 321 Mich App 304; 910 NW2d 348
(2017) (Brody I), and remanded this case to this Court for reconsideration “of its standing
analysis.” In re Brody Living Trust, 501 Mich 1094 (2018) (Brody II). Our Supreme Court
directed this Court to “consider whether the terms ‘child’ and ‘beneficiary’ in MCL 700.1105 are
modified by the phrase ‘and any other person that has a property right in or claim against a trust
estate.’ If so, then [this Court] shall consider whether Cathy Deutchman is an ‘interested person’
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under this reading of the statute.” Brody II, 501 Mich at 1094. Additionally, our Supreme Court
instructed that this Court may consider the arguments made in the Supreme Court by the Probate
and Estate Planning Section of the State Bar of Michigan regarding whether Cathy has standing
“in light of MCR 5.125(C)(33)(g) and MCL 700.7603(2) and is a present (not contingent)
beneficiary of the trust.” Id. We again affirm our prior conclusion that the trial court did not err
by concluding that Cathy had standing as a petitioner in this action.
This case arose out of a family dispute involving the Rhea Brody Living Trust. Rhea’s
husband, Robert Brody, originally appealed the order granting partial summary disposition in
favor of Rhea and Robert’s daughter, Cathy. As this Court originally articulated in Brody I, “the
order resolved claims relating to two family businesses, Brody Realty No I, LLC, and Macomb
Corporation, declared Rhea Brody disabled pursuant to the terms of the trust, and removed
Robert as successor trustee of the trust.” Brody I, 321 Mich App at 308. The convoluted factual
background of this case can best be boiled down to the fact that Rhea became mentally
incapacitated as a result of dementia, and Robert, who is also a beneficiary of the trust, began
acting as successor trustee. Allegations were made that Robert took actions that were
detrimental to the trust, contrary to Rhea’s intent, and favored Jay Brody and his heirs
1
to the
detriment of Cathy and her heirs.
In their original appeal to this Court, Robert and Jay argued that Cathy “did not have
standing (i.e., she was not a proper party) to request adjudication of the issues in her petition,
including Robert’s removal as trustee of the Rhea Trust and reversal of actions taken by Robert
as trustee.” Id. at 314. Previously, we concluded that Cathy did have standing under MCL
700.7201 as an “interested person,” which is defined in MCL 700.1105(c), because
[t]here is no dispute that Cathy is Rhea’s child. In addition, Cathy is a
“beneficiary.” Under MCL 700.1103(d)(i), a beneficiary includes a “trust
beneficiary,” defined in MCL 700.7103(l)(i) as a person with “a present or future
beneficial interest in a trust, vested or contingent.” The term “beneficial interest”
is defined as follows: “A right or expectancy in something (such as a trust or an
estate), as opposed to legal title to that thing. For example, a person with a
beneficial interest in a trust receives income from the trust but does not hold legal
title to the trust property.” Black’s Law Dictionary (10th ed), p 934. The plain
language of the trust indicates that Cathy has a future (upon Rhea’s death),
contingent (assuming no revocation or amendment) interest in the trust property.
See Restatement Trusts, 1st, § 56, illustration 7, p 172 (an intervivos trust in
which the death of a settlor is a condition precedent establishes a “contingent
equitable interest in remainder”). Specifically, Cathy will receive Rhea’s clothing
and jewelry. In addition, if Robert predeceases Rhea, then a subtrust composed of
50% of the Rhea Trust’s remaining assets is created for Cathy. If Rhea
predeceases Robert, then a marital trust and a family trust are created, and under
the marital trust, Rhea’s descendants are each entitled to net income distributions
1
Jay is the son of Rhea and Robert.
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and any principal necessary for education, health, support, and maintenance.
[Brody I, 321 Mich App at 317-318.]
We have been directed by our Supreme Court to reexamine our original standing
analysis. In particular, our Supreme Court indicated that this Court “should consider whether the
terms ‘child’ and ‘beneficiary’ in MCL 700.1105[(c)] are modified by the phrase ‘and any other
person that has a property right in or claim against a trust estate.’ ” Brody II, 501 Mich 1094.
Our Supreme Court further instructed that if this Court answers that question in the affirmative,
this Court should then consider whether Cathy qualifies as an “interested person” under such an
interpretation of MCL 700.1105(c). Id. Finally, our Supreme Court noted that this Court “may
also consider” the arguments in an amicus curiae brief submitted in our Supreme Court by the
Probate and Estate Planning Section (the Probate Section) of the State Bar of Michigan. Because
we find the Probate Section’s arguments persuasive, we will consider them first, in the interest of
clarity.
Given the broad scope of the Estates and Protected Individuals Code (EPIC), MCL
700.1101 et seq., which codifies several complex areas of law, the act contains many statutory
definitions. Such definitions are not consolidated in any one portion of EPIC, are not universally
applicable, sometimes overlap or supersede other definitions within the act, and often contain
terms or phrases that are also statutorily defined. See, e.g., MCL 700.1102 (“The definitions
contained in this part apply throughout this act unless the context requires otherwise or unless a
term defined elsewhere in this act is applicable to a specific article, part, or section.”).
Accordingly, as a foundational matter, several relevant statutory definitions must be set forth
before approaching the principal analysis.
Under MCL 700.7103(l)(i), the term “trust beneficiary” is defined, in relevant part, as a
person who “has a present or future beneficial interest in a trust, vested or contingent.” On the
other hand, the phrase “qualified trust beneficiary” is defined under MCL 700.7103(g), in
pertinent part, as:
a trust beneficiary to whom 1 or more of the following apply on the date the trust
beneficiary’s qualification is determined:
(i) The trust beneficiary is a distributee or permissible distributee of trust
income or principal.
* * *
(iii) The trust beneficiary would be a distributee or permissible distributee
of trust income or principal if the trust terminated on that date. [Emphasis added.]
In turn, “distributee” is defined at MCL 700.1103(o), in relevant part, as “a person that
receives . . . trust property from the trustee other than as a creditor or purchaser.”
The phrase “permissible distributee” is not defined within EPIC, and we are unable to
locate any previous authority construing that term. However, in context, the plain meaning
seems apparent without resorting to dictionary definitions. See Bloomfield Twp v Kane, 302
Mich App 170, 175; 839 NW2d 505 (2013) (“[R]ecourse to dictionary definitions is unnecessary
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when the Legislature’s intent can be determined from reading the statute itself.”) (quotation
marks and citation omitted). We conclude that the plain meaning expressed is that a
“permissible distributee” is a person who is permitted, not entitled, to receive trust property from
the trustee other than as a creditor or purchaser.
In its brief, the Probate Section posits that this Court reached the correct outcome
concerning standing in Brody I but did so for the wrong reasons.
2
Specifically, the Probate
Section contends that this Court
made the following errors:
• Disregard[ed] the second sentence of MCL 700.1105(c) and its reference to
the importance of considering both “the particular purposes of, and matter[s]
involved in, [the] proceeding” and the “supreme court rules.”
• Overlook[ed] MCR 5.125 entirely.
• Overlook[ed] MCL 700.7603(1) and (2) entirely.
• Fail[ed] to consider whether Cathy was “a person entitled to be reasonably
informed, as referred to in MCL 700.7603(2),” for purposes of MCR
5.125(C)(33).
• Determin[ed] that Cathy was an “interested person” based solely on the fact
that she qualified for two of the categories included in the first sentence of
MCL 700.1105(c) (“child” and “beneficiary”)[.]
The Probate Section also argues that Brody I will have unintended downstream consequences.
According to the Probate Section, this Court’s
determination that a “child” or a “beneficiary” is always an interested person with
standing to commence trust proceedings before the probate court is an erroneous
construction of EPIC and the Michigan Trust Code that can be expected to
interfere seriously with the administration of private citizens’ estate planning and
trust administration. In light of this published decision, “children” and
“beneficiaries” (who would not otherwise qualify as “interested persons” under
MCL 700.1105(c), MCR 5.125, and MCL 700.7603(2)) can be expected to rely
on [Brody I] to pursue trust-related litigation which would not have been
permitted prior to [that] decision.
[3]
2
We note that the arguments raised by the Probate Section were not previously raised by the
parties in this Court.
3
In other words, the practical concern of the Probate Section is that Brody I’s construction of
MCL 700.1105(c) will undercut several of the characteristics that make revocable grantor trusts
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The second sentence of MCL 700.1105(c) provides, “Identification of interested persons
may vary from time to time and shall be determined according to the particular purposes of, and
matter involved in, a proceeding, and by the supreme court rules.” (Emphasis added.) Within
Subchapter 5.100 of our court rules, which sets forth rules of pleading and practice that apply in
probate court, our Supreme Court has promulgated MCR 5.125, which is captioned, “Interested
Persons Defined.” In pertinent part, MCR 5.125 provides:
(B) Special Conditions for Interested Persons.
* * *
(2) Devisee. Only a devisee whose devise remains unsatisfied, or a trust
beneficiary whose beneficial interest remains unsatisfied, need be notified of
specific proceedings under subrule (C).
* * *
(C) Specific Proceedings. Subject to subrules (A) and (B) and MCR
5.105(E),
[4]
the following provisions apply. When a single petition requests
multiple forms of relief, the petitioner must give notice to all persons interested in
each type of relief:
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(33) Subject to the provisions of Part 3 of Article VII of the Estates and
Protected Individuals Code,
[5]
the persons interested in a proceeding affecting a
trust other than those already covered by subrules (C)(6), (C)(28), and (C)(32)
[6]
are:
desirable as an estate planning tool. The Probate Section is concerned that grantor-settlors who
use revocable grantor trusts (or “living” trusts) solely as an estate planning mechanism—seeking
to avoid probate, to minimize tax liabilities, and to keep private financial affairs from becoming
a matter of public record—will suddenly have to answer to beneficiaries, during the grantor-
settlors’ lifetimes, for the management of “trust” assets that, for all practical purposes, still
belong to the grantor-settlors and are funded into the “trust” only to avoid the need to probate
unfunded assets (via a pour-over will) after death.
4
Because MCR 5.105(E) concerns “unborn or unascertained interested persons not represented
by a fiduciary or guardian ad litem,” it is not relevant in this case.
5
Part 3 of Article VII of EPIC concerns the representation of parties involved in the proceeding.
6
Those listed subrules are not seemingly relevant here. Subrule (C)(6) involves proceedings
“for examination or approval of an account of a fiduciary,” Subrule (C)(28) concerns petitions
“for approval of a trust under MCR 2.420,” and Subrule (C)(32) addresses “modification or
termination of a noncharitable irrevocable trust[.]”
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(a) the qualified trust beneficiaries
affected by the relief requested,
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(d) in a proceeding to appoint a trustee, the proposed trustee,
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(g) if the petitioner has a reasonable basis to believe the settlor is an
incapacitated individual, those persons who are entitled to be reasonably
informed, as referred to in MCL 700.7603(2).
(D) The court shall make a specific determination of the interested persons
if they are not defined by statute or court rule. [Emphasis added.]
Read in concert, MCL 700.1105(c) and MCR 5.125 demonstrate that the interested-
person inquiry is decidedly flexible and fact-specific. The identity of the interested persons can
change not only over time but also depends on the nature of the proceedings and the relief
requested. Moreover, MCR 5.125(D) unambiguously provides that there may be circumstances
in which a probate court must determine whether an individual—one who does not qualify as an
interested person under any of the statutory definitions or under the other subparts of MCR
5.125—nevertheless qualifies as an interested person under the facts presented in the given case.
In this case, Cathy petitioned for several distinct forms of relief: (1) Robert’s removal as
successor trustee with Cathy’s appointment in his stead, or the appointment of an independent
trustee to manage the trust’s real estate interests; (2) delivery of all trust records to the new
successor trustee along with a full accounting; (3) partial supervision of the trust during the
pendency of this action; (4) the rescission of all allegedly improper acts taken by Robert as
successor trustee following Rhea’s disability, with the funds from such rescinded transactions
held in a constructive trust; (5) an order enjoining Robert from committing any future breaches
of trust; (6) Robert’s removal as manager of Brody Realty, which is owned by the trust; (7) an
award of damages to the trust and Brody Realty; (8) surcharge of Robert and Jay for Cathy’s
attorney fees in this action; and (9) an order enjoining Robert and Jay from wasting or dissipating
trust assets. With regard to each of those items of relief requested, we agree with the Probate
Section that Cathy qualified as an interested person under MCR 5.125(C)(33)(g) (“if the
petitioner has a reasonable basis to believe the settlor is an incapacitated individual, those
persons who are entitled to be reasonably informed, as referred to in MCL 700.7603(2)”).
MCL 700.7603(2) provides:
If the trustee reasonably believes that the settlor of a revocable trust is an
incapacitated individual,
[7]
the trustee shall keep the settlor’s designated agent or,
7
MCL 700.1105(a) provides:
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if there is no designated agent or if the sole agent is a trustee, each beneficiary
who, if the settlor were then deceased, would be a qualified trust beneficiary
informed of the existence of the trust and reasonably informed of its
administration. [Emphasis added.]
In this case, there is no dispute that when Robert—who was acting as Rhea’s agent under
a durable power of attorney—formally accepted his role as successor trustee in May 2013, he
had reason to believe that Rhea was an “incapacitated individual” as a result of her dementia.
Nor is there any evidence that she was no longer an incapacitated individual at the time that
Cathy instituted these proceedings. Moreover, had Rhea been deceased at that time, Cathy
would have been a “qualified trust beneficiary” under MCL 700.7103(g)(i) (“The trust
beneficiary is a distributee or permissible distributee of trust income or principal.”). Under such
circumstances, Cathy would also have been entitled to the specific gift of Rhea’s jewelry and
clothing, and Cathy would also have been entitled to receive a portion of the trust’s net income.
Therefore, Cathy would qualify as a “distributee” under MCL 700.1103(o). And because she
would qualify as a distributee of both trust income and principal in the event of Rhea’s death, she
would also become a “qualified trust beneficiary” under those circumstances. As a result, Cathy
would be entitled to be reasonably informed of the trust and its administration under MCL
700.7603(2), which means she would qualify as an interested person under the definition set
forth in MCR 5.125(C)(33)(g).
Consequently, the Probate Section is correct that Cathy qualifies as an interested person
in this matter under MCR 5.125(C)(33)(g) and MCL 700.1105(c). As an interested person, she
had standing to institute these proceedings. See In re Rottenberg Living Trust, 300 Mich App
339, 355; 833 NW2d 384 (2013) (holding, in the context of trust litigation, that an “interested
person” had “statutory standing . . . to invoke the probate court’s jurisdiction with respect to the
administration of [the trust at issue]”). Therefore, even assuming, arguendo, that the
construction of MCL 700.1105(c) announced in Brody I was erroneous, the proper conclusion
regarding Cathy’s standing was nevertheless reached.
In light of the foregoing analysis, we would ordinarily decline to address whether the
phrase “and any other person that has a property right in or claim against a trust estate” in MCL
700.1105(c) modifies the terms “child” and “beneficiary” because the issue would be moot. See
Garrett v Washington, 314 Mich App 436, 449; 886 NW2d 762 (2016) (“A matter is moot if this
Court’s ruling cannot for any reason have a practical legal effect on the existing controversy.”)
(quotation marks and citations omitted). However, given the circumstances at bar, we will
nevertheless address and decide the issue. See Int’l Business Machines Corp v Dep’t of
Treasury, 316 Mich App 346, 352; 891 NW2d 880 (2016), in which this Court articulated that
“Incapacitated individual” means an individual who is impaired by reason
of mental illness, mental deficiency, physical illness or disability, chronic use of
drugs, chronic intoxication, or other cause, not including minority, to the extent of
lacking sufficient understanding or capacity to make or communicate informed
decisions.
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the “rule of mandate” reflects “the well-accepted principle in our jurisprudence that a lower court
must strictly comply with, and may not exceed the scope of, a remand order.” The Supreme
Court’s remand instructions indicated that this Court “should consider” this issue, and when
viewed in context, the Supreme Court’s use of “should” does not seem permissive.
We conclude that the proposed construction of MCL 700.1105(c) would erroneously
restrict the flexible meaning of “interested person” that is conveyed by the statutory language. In
pertinent part, the portion of MCL 700.1105(c) that is at issue—the first of its two sentences—
provides:
“Interested person” . . . includes, but is not limited to, the incumbent
fiduciary; an heir, devisee, child, spouse, creditor, and beneficiary and any other
person that has a property right in or claim against a trust estate or the estate of a
decedent, ward, or protected individual; a person that has priority for appointment
as personal representative; and a fiduciary representing an interested person.
[Emphasis added.]
Such language must not be construed in a vacuum, heedless of context. See Koontz v Ameritech
Servs, Inc, 466 Mich 304, 318; 645 NW2d 34 (2002) (noting that potential ambiguities in
statutory language may be resolved by contextual considerations). As noted earlier, the second
sentence of MCL 700.1105(c) expressly states that the “[i]dentification of interested persons may
vary from time to time and shall be determined according to the particular purposes of, and
matter involved in, a proceeding, and by the supreme court rules.” Moreover, in MCR 5.125(D),
our Supreme Court has taken a decidedly flexible approach as well. In light of the several broad
legal areas that EPIC covers, such an approach is prudent. It would be unduly restrictive to
conclude that the terms “child” and “beneficiary” in MCL 700.1105(c) are necessarily
modified—in every case—by the phrase “any other person that has a property right in or claim
against a trust estate . . . .” Doing so would directly contravene the legislative intent expressed
by the second sentence of MCL 700.1105(c), which demonstrates that the Legislature wished to
leave the fact-specific inquiry of who qualifies as an interested person in a given probate
proceeding to the sound discretion of the probate court.
That same conclusion is also supported by fundamental principles of grammar, including
the last-antecedent rule. “Because the Legislature is presumed to know the rules of grammar, . . .
statutory language must be read within its grammatical context unless something else was clearly
intended . . . .” Niles Twp v Berrien Co Bd of Comm’rs, 261 Mich App 308, 315; 683 NW2d 148
(2004). “Proper syntax provides that commas usually set off words, phrases, and other sentence
elements that are parenthetical or independent.” Dale v Beta-C, Inc, 227 Mich App 57, 69; 574
NW2d 697 (1997). Moreover, “[i]t is a general rule of grammar and of statutory construction
that a modifying word or clause is confined solely to the last antecedent, unless a contrary
intention appears.” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999).
The “last antecedent” of a given term or phrase is “ ‘the last word, phrase, or clause that
can be made an antecedent without impairing the meaning of the sentence . . . .’ ” People v
English, 317 Mich App 607, 614; 897 NW2d 184 (2016) (opinion by WILDER, P.J.), quoting 2A
Singer & Singer, Sutherland Statutory Construction (7th ed), § 47:33, pp 494-497. In this
instance, the last word, phrase, or clause that can be made an antecedent of the phrase “and any
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other person that has a property right in or claim against a trust estate” is the word “beneficiary.”
Moreover, from a grammatical standpoint, the word “beneficiary” appears in the same dependent
clause as the phrase in question, separated from the rest of the sentence by commas or
semicolons. Therefore, lacking any clear evidence of a contrary legislative intent—and we find
none—it would be inappropriate to construe the phrase “and any other person that has a property
right in or claim against a trust estate” as modifying the word “child.”
On the contrary, in grammatical context, the phrase in question seems to represent an
independent catchall category, not adjectival language that was meant to modify the terms
preceding it. Under the canon of construction ejusdem generis, when “general words follow a
designation of particular subjects, the meaning of the general words will ordinarily be presumed
to be and construed as restricted by the particular designation and as including only those things
of the same kind, class, character or nature as those specifically enumerated.” Benedict v Dep’t
of Treasury, 236 Mich App 559, 564; 601 NW2d 151 (1999) (quotation marks and citation
omitted). Therefore, “[w]hen construing a catch-all phrase, courts will interpret it to include
only those things of the same type as the preceding specific list.” Sebring v City of Berkley, 247
Mich App 666, 674; 637 NW2d 552 (2001). In other words, if anything, the terms “child” and
“beneficiary” should be construed as modifying the meaning of the catchall phrase “any other
person that has a property right in or claim against a trust estate,” not the other way around.
For those reasons, we reject the proposed construction of MCL 700.1105(c) under which
the phrase “any other person that has a property right in or claim against a trust estate” would be
construed as modifying the preceding terms “child” and “beneficiary.” In light of the second
sentence of MCL 700.1105(c), it seems that whether a “child” or a “beneficiary” is interested in
a given trust proceeding is dependent on the particular purposes of, and matters involved in, the
proceeding—under the facts as they exist at the time that standing is determined—not whether
the given “child” or “beneficiary” has a property right in or claim against the trust estate.
We again affirm our prior conclusion that the trial court did not err by concluding that
Cathy had standing as a petitioner in this action.
/s/ Colleen A. O’Brien
/s/ Christopher M. Murray
/s/ Kathleen Jansen
