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STATE OF MICHIGAN COURT OF APPEALS

In re WELLINGTON HAYES and ELIZABETH L. HAYES REVOCABLE TRUST.

ROBERT P. LADD, Petitioner-Appellee, v PATRICIA SUNDERMAN, Respondent-Appellant.

UNPUBLISHED November 2, 2010

No. 288746 St. Clair Probate Court LC No. 2007-000229-TV

Before: BORRELLO, P.J., and CAVANAGH and OWENS, JJ. PER CURIAM. Respondent Patricia Sunderman appeals as of right from the trial court's order requiring that she "return and/or convey to the Wellington Hayes Revocable Trust" various funds and stocks, and also from an earlier order declaring two purported amendments to the trust void. We affirm. I. FACTS Wellington Hayes and Elizabeth L. Hayes were husband and wife. Respondent is Wellington Hayes' daughter from an earlier marriage. Wellington and Elizabeth Hayes executed the subject trust in April 1994, naming themselves as settlors and co-trustees, and a bank as successor trustee. Wellington and Elizabeth Hayes reserved to themselves the right to revoke, alter, or amend the trust, or to designate a different successor trustee. Elizabeth Hayes died in 1997. In October 2004, Wellington Hayes executed an amendment to the trust, removing the bank as successor co-trustee and naming himself sole trustee, naming respondent as successor trustee, and changing the distributions. A second amendment followed in July 2006, this one granting respondent a house plus any automobile owned by Wellington Hayes upon his death. In late 2005, Wellington Hayes transferred a number of stocks that he held in certificate form into an investment account. As of March 31, 2006, that account had a balance of $508,170. In March and April 2006, securities were sold, and the proceeds of $60,000 transferred to

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Wellington Hayes' checking account. In August of that year, Wellington Hayes appointed respondent his attorney in fact, and added her as a signatory to his checking account. On September 30, 2006, there was $636,860 in the trust's investment account. On October 16, 2006, respondent, asserting her power of attorney over Wellington Hayes, opened a money market account in both names with rights of survivorship, and directed a bank employee to sell a variety of securities in the trust account and transfer the proceeds to the new joint account. Over the next several days, $325,374.89 was thus transferred, as was an additional $82,940.76 the following month. In late October 2006, respondent withdrew $260,770.83 from the joint money market account and deposited it into her personal account. On November 1, 2006, respondent withdrew $1,000 from the joint account, the next day she withdrew an additional $50,000, then twelve days later she withdrew another $82,000. In late October 2006, respondent deposited $12,000 from the trust account into Wellington Hayes' checking account, and thereafter she wrote a check for $5,000 against that account toward the purchase of certain real property of hers. In early December 2006, the securities remaining in the investment account, consisting of 6,000 shares of DTE Energy, were transferred to an account at Smith Barney, which was apparently a joint account between respondent and Wellington Hayes. Respondent testified that Wellington Hayes opened this account and intended to sell some of the DTE Energy stock, but the trial court stated that no documentation relating to the establishment of this account was provided. Wellington Hayes died on February 10, 2007. Petitioners, the nieces and nephew of Elizabeth Hayes and beneficiaries under the trust, petitioned to invalidate the two amendments to the trust that Wellington Hayes executed after Elizabeth Hayes died. The trial court did so, on the ground that the trust permitted amendment only by both settlors, not by the one who has survived the other. The trial court additionally concluded that the vast majority of the withdrawals made by respondent in late 2006 were not for Wellington Hayes' support, care, comfort, maintenance, or enjoyment. The court identified several withdrawals that violated the trust's provisions, and ordered respondent to reimburse the trust in the amount of $397,770.83 plus interest, and to convey the DTE Energy stock, plus all income received from it, to the trust. II. VALIDITY OF AMENDMENTS Respondent argues that the trial court incorrectly held that the two amendments to the trust executed by Wellington Hayes after Elizabeth Hayes had died were invalid. We disagree. "When reviewing equitable actions, this Court employs review de novo of the decision and review for clear error of the findings of fact in support of the equitable decision rendered." LaFond v Rumler, 226 Mich App 447, 450; 574 NW2d 40 (1997). Paragraph 2 of the trust sets forth its manner of amendment: WELLINGTON HAYES and ELIZABETH L. HAYES, hereby reserves [sic] to themselves, the right to revoke, alter or amend this trust -2-

agreement in whole or in part, to withdraw assets from the trust estate and to designate a different successor trustee. Thus trust agreement may not be altered, revoked or amended by a guardian, conservator or other person acting on behalf of Settlors. [Respondent's Exhibit 1, pp 1-2 (capitals and bold in the original).] The trial court cited an unpublished opinion1 of this Court in support of its conclusion that "[r]eservation of the authority to amend the Trust to the Settlors jointly precludes the survivor of them . . . from acting individually to amend the Trust." That opinion in turn offered a quotation from a legal text that the trial court also used: "`If the power to amend is reserved to two settlors, it must be exercised by both, and the survivor cannot use the power.'" Slip op pp 45, quoting Bogert, Trusts and Trustees (2d ed),

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