                            STATE OF MICHIGAN

                            COURT OF APPEALS



In re Estate of DONNELLY.


JAMIE L. PETERSON,                                                   UNPUBLISHED
                                                                     April 13, 2017
               Appellant,

v                                                                    No. 331420
                                                                     Kalkaska Probate Court
RUTHANN DONNELLY,                                                    LC No. 15-009656-DA

               Appellee.


Before: RONAYANE KRAUSE, P.J., and K. F. KELLY and GADOLA, JJ.

PER CURIAM.

       Appellant appeals from an order of the probate court denying a petition for formal
proceedings. Appellant argues that the probate court erred when it concluded he did not have
standing to file a petition under the Estates and Protected Individuals Code, MCL 700.1101 et
seq. We vacate the trial court’s ruling and remand for further proceedings.

        This action was initiated before the probate court by a petition for formal proceedings
with regard to the estate of Brian Donnelly. The petition identifies the petitioner as “Gretchen
Helfrich as attorney for Jamie Lee Peterson.” The petition further identifies the petitioner as a
“creditor” of the estate and states that “Litigation against the Estate is pending.” Appellee is the
widow of Brian Donnelly and was designated in the petition as the heir of the estate.

        At the hearing on the petition before the probate court, counsel for petitioner explained
that petitioner had filed an action against the estate in federal court and petitioner was seeking to
establish the estate so that petitioner could serve notice of the federal action on the estate, and
presumably thereafter proceed against the estate. At the conclusion of the hearing, the probate
court denied the petition for formal proceedings for the reason that petitioner had failed to
present evidence of being a creditor of the estate, and therefore lacked standing to petition the
probate court as a creditor. The probate court reasoned:

       [U]ntil you’re able to establish that you’re a valid creditor that can petition to
       open up an estate, you really don’t have standing to be here today . . . . You have
       to have a valid basis to do that and a legitimate interest in the estate. And if you

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       don’t have a case that’s been decided . . . and there’s some kind of a judgment
       there that needs to be paid, you have no standing here.

       Generally, we review appeals from a probate court decision on the record, not de novo.
In re Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008). Nonetheless, we
review de novo questions of statutory interpretation and standing. In re Casey Estate, 306 Mich
App 252, 256; 856 NW2d 556 (2014). In general, “to have standing, a party must have a legally
protected interest that is in jeopardy of being adversely affected.” In re Foster, 226 Mich App
348, 358; 573 NW2d 324 (1998). The party bringing the claim must have “some real interest in
the cause of action, or a legal or equitable right, title, or interest in the subject matter of the
controversy.” Bowie v Arder, 441 Mich 23, 42; 490 NW2d 568 (1992) (citation omitted).

       MCL 700.3401(1) provides that “[a]n interested person or a person that has a right or
cause of action that cannot be enforced without administration may commence a formal testacy
proceeding” by filing a petition in accordance with that section. An “interested person” is
defined by MCL 700.1105(c) as follows:

               “Interested person” or “person interested in an estate” 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. 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.

        In the petition before the probate court, the petitioner sought a formal testacy proceeding
as a “creditor.” As the probate court found, the record is devoid of evidence that would support
that claim. However, it is unclear from the record whether appellant could have demonstrated
that he was nonetheless an “interested person” or a “person that has a right or cause of action”
within the meaning of MCL 700.3401(1) and MCL 700.1105(c). Petitioner contended before the
probate court that he had filed an action against the estate in federal court. The record of the
hearing reflects that petitioner offered to give the probate court a copy of the complaint filed in
the alleged federal action, but the probate court declined to accept it. Had petitioner been
permitted to pursue this argument, petitioner may have been successful in demonstrating a
“claim against . . . the estate of a decedent” or that he was “a person that has a right or cause of
action that cannot be enforced without administration . . . .” We therefore vacate the trial court’s
ruling and remand this matter to the probate court for further proceedings to determine whether




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appellant, though not a creditor, is otherwise entitled to a formal testacy proceeding against the
estate of Brian Donnelly.

        Remanded for further proceedings consistent with this opinion.        We do not retain
jurisdiction.



                                                            /s/ Amy Ronayne Krause
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Michael F. Gadola




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