The Michigan Supreme Court on June 21, 2018 issued their much-anticipated opinion in the case of In re Mardigian Estate. In that case attorney Mark Papazian prepared a trust amendment and corresponding will for his client and friend Robert Mardigian. The new estate planning documents left the bulk of Mardigian's very substantial ($ millions) estate to Papazian and his children. Mardigian died six months later. Not surprisingly, Mardigian's family, comprised of his nieces and nephews, as he did not have any children, challenged the documents and accused Papazian of exerting undue influence in obtaining Mardigian's signature on the documents. The probate court summarily set the documents aside as contrary to public policy because Michigan Rule of Professional Responsibility 1.8(c) prohibits an attorney from preparing a document, such as a will or a trust, that gives the attorney or his family "any substantial gift." There is little doubt that the preparation of the will and trust was prepared in violation of this rule.
"Release Me" was a popular song written by Eddie Miller and Robert Yount in 1949 and made into an international hit by Englebert Humperdinck in 1967. The opening line of the song "[Please release me, let me go," is also a constant refrain of trustees who (understandably) want to be released from liability in exchange for distributions of trust assets to the beneficiaries. This is especially true when beneficiaries have expressed concerns or complaints about a trustee's work as trustee. And why not? Contractors are asked to provide releases of lien in exchange for payment. Others in the context of fulfilling contractual obligations frequently seek a release in exchange for full performance. Should trustees be treated any differently? Under Michigan law, they are; probably.