             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



In re GERALDINE M. BENJAMIN TRUST.


KATHLEEN JANSEN, Trustee of the GERALDINE                             UNPUBLISHED
M. BENJAMIN TRUST,                                                    April 30, 2020

               Appellee/Cross-Appellant,

v                                                                     No. 345632
                                                                      Ogemaw Probate Court
DAVID ZETTLE and LUANN ZETTLE, also                                   LC No. 17-015903-DE
known as LOUANN ZETTLE,

               Appellants/Cross-Appellees.


Before: O’BRIEN, P.J., and JANSEN and GLEICHER, JJ.

GLEICHER, J. (concurring in part and dissenting in part).

        Plaintiffs challenged the validity of a September 21, 2011 will and a 2012 trust amendment
appointing defendant David Zettle as personal representative and trustee of Geraldine Benjamin’s
estate. After conducting a trial, the probate court found that the documents had been forged. I
concur with the majority’s holding that the probate court’s findings are well supported by the
evidence and that the court did not abuse its discretion by invalidating both documents.

        By the time of the trial, David Zettle had distributed the trust’s assets in accordance with
the forged documents. Unsurprisingly, the forged instruments bequeathed substantial sums to the
Zettle family. The probate court ordered the Zettles to reimburse the Trust in the amount of
$371,955.40. Additionally, the court declared that “Luann Zettle has forfeited her right to her
portion of the trust inheritance and she shall be paid in accordance to the trust documents as a
predeceased heir.” On appeal, the Zettles challenge LuAnn’s “disinheritance” from Benjamin’s
validly executed estate documents as a remedy not contemplated by the Michigan Trust Code, and
assert that the trial court miscalculated the amount of the trustee surcharge applied to David Zettle.

        The majority holds that the probate court possessed the authority to withhold LuAnn
Zettle’s share of the estate as an equitable sanction for her misconduct in scheming with her


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husband to “defraud the beneficiaries through forgery and to obtain significant financial benefit.”
I concur that the court had authority to sanction LuAnn Zettle, but I respectfully disagree with the
majority’s analysis for two reasons.

        First, the majority misunderstands or ignores a salient fact. In disinheriting LuAnn, the
probate court did not exercise any independent authority to provide a “disincentive” to others, or
to equitably penalize the Zettles for their misconduct. Rather, Benjamin’s original April 14, 2011
will, which the court determined to be valid, contains a “No Contest Clause” providing as follows:

               If any person or entity, other than me, singularly, or in conjunction with any
        other person or entity, directly or indirectly, contests in any Court the validity of
        this Will, including any codicils thereto, then the right of that person or entity to
        take any interest in my estate shall cease, and that person or entity shall be deemed
        to have predeceased me.

Although the probate court did not reference this provision in its opinion, the language of the
probate court’s judgment (and the law) support that the court relied on the no-contest clause in
disinheriting LuAnn.

        The second ground for my disagreement with the majority dovetails with the first. The
experienced probate judge who presided over this case undoubtedly understood that she could not
simply rewrite the decedent’s estate plan to penalize Zettle, as the majority suggests. “The cardinal
rule in will cases is to ascertain and give effect to the intent of the testator.” In re Bair Estate, 128
Mich App 713, 716; 341 NW2d 188 (1983). A probate court has no authority to rewrite the
provisions of a will, or to “equitably” disinherit a beneficiary based on the court’s perception that
doing so represents a just sanction for misconduct. See Post v Grand Rapids Trust Co, 255 Mich
436, 438; 238 NW 206 (1931) (“Even if we are in full sympathy with the position of appellees, we
may not disregard lawful conditions of a will and make a new will for the testatrix.”); George v
Haber, 343 Mich 218, 229; 72 NW2d 121 (1955) (“Equity may grant relief when necessary to
protect the carrying out of the purposes of a trust or to prevent the destruction of, or injury to, trust
funds, in the event that altered circumstances create an exigency justifying intervention.”). No
legal authority supports that a probate court may simply eliminate a beneficiary if the court feels
aggrieved by the beneficiary’s conduct. And contrary to the majority, the court did not do so here.
Because the majority’s analysis lacks legal and factual merit, I cannot join it.

        Furthermore, the majority need not have conjured an equitable remedy out of thin air to do
justice in this case. Even absent a “no contest” clause, the probate court had a punishment
mechanism at its disposal. The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et
seq., provides for a powerful sanction in a case such as this:

                If a person embezzles or wrongfully converts trust property, or refuses,
        without colorable claim of right, to transfer possession of trust property to the
        current trustee upon demand, the person is liable in an action brought by the current
        trustee, or the beneficiary of the trust for the benefit of the trust, for double the value
        of any property embezzled, converted, or wrongfully withheld from the current
        trustee. [MCL 700.7813(4).]




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David and LuAnn Zettle embezzled trust property. This sanction was available regardless of
whether the will included a no-contest clause.1

        I would hold that LuAnn’s disinheritance conformed with Geraldine Benjamin’s
testamentary intent as clearly stated in her will, and that the trial court’s calculation of the amount
due to the estate, while perhaps not as clear-cut as the majority describes, fell within the court’s
discretion.



                                                               /s/ Elizabeth L. Gleicher




1
  Although not altogether clear, it appears that the court applied MCL 700.7813(4) to the
distributions ordered for the deceased’s eligible grandchildren.


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