Answer: When the person nominated is unsuitable and it is in the best interest of the estate for another to serve.
As background, according to MCL 700.3203(1), a person named in a will to serve as personal representation has priority of appointment unless that person is disqualified. A person is disqualified if they are unsuitable to serve. MCL 700.3204(3). The Estates and Protected Individuals Code does not define “unsuitable,” but a personal representative can be removed for various reasons including if “removal is in the best interest of the estate” or the personal representative “intentionally misrepresented material facts in a proceeding leading to the appointment.” MCL 700.3611(2). It is the party challenging suitability who has the burden of establishing unsuitability by a preponderance of the evidence.
The case of In re Estate of Marjorie Johnson, Docket No. 362927, Oct. 19, 2023 (Michigan Court of Appeals) explores application of these principles. In Johnson, the decedent had two children named Amos and Rita. After their mother’s death, Rita repeatedly asked Amos if he knew whether their mother had a will. Rita alleged Amos consistently responded that it was none of her business. Eleven months went by after their mother’s death, and Amos did not file a will with the probate court or seek to open an estate. Rita then filed to open an estate and be appointed as personal representative. In her petition, Rita stated that to the best of her knowledge her mother died without a will. Amos did not object, and Rita was appointed.
Thereafter, Amos filed their mother’s will with the probate court and sought Rita’s removal as personal representative on the basis that he was named to serve in the will and thus had priority of appointment. Amos also contended that Rita lied to the court that there was no will and should be removed on those grounds; Amos argued Rita knew their mother had a will because Rita served as a witness to other estate planning documents signed by their mother the same day as the will. Rita responded that she did not witness the signing of a will because she was out of the country at that time and instead witnessed two disability planning documents presented to her later.
The Court of Appeals affirmed the probate court’s ruling that Rita met her evidentiary burden that Amos was unsuitable to serve as personal representative. The probate court found Amos unsuitable to serve because he waited several months to submit the decedent’s will and personally benefitted from living in a rent-free home during this delay. The court also noted that during this delay Amos had access to other assets owned by the decedent. Further, the court noted that Amos had a long history of personal tax and financial problems that reflected poorly on his ability to act as a fiduciary and that he failed to pay the property taxes on homes owned by the decedent after her death. Finally, the court believed Rita’s explanation of why she did not believe that her mother had a will.
