STATE OF MICHIGAN PROBATE COURT
COUNTY OF OAKLAND
PETITION TO COMPEL DISTRIBUTION OF ESTATE AND ORDER THEREOF
FILE NO. __
In the matter of E. Opperthauser Living Trust.
NOW COMES [ENTER NAME], Beneficiary in the said Trust, and for this Petition to Compel Distribution of estate states as follows:
FACTS
I, Steven Opperthauser, am one of four beneficiaries in the E. Opperthauser Living Trust. (Exhibit A). The other beneficiaries (siblings) are: Denise Albrecht and co-trustees Kathy Wiltsie and Scott Opperthauser.
The interested persons, addresses, and their representatives are as follows: Kathy L. Wiltsie, 23179 Farmington Rd. Farmington, MI, 48336; Scott E. Opperthauser 32216 Baintree Rd., Farmington Hills, MI 48334; and Denise A. Albrecht 23339 Cunningham Rd. Warren, MI 48091.
Kathy Wiltsie and I were originally appointed co-trustees by our parents Earl and Eugenia (Ann), who passed in 2008 and 2009 respectively.
All of the assets in the Trust except the following were distributed after our Mother’s death in 2009:
i. An 8-bedroom summer home (cottage), located in Mecosta County, MI, Tax ID: 54-1142583 000, commonly known as 11237 Lake Road, Stanwood, MI, 49346.
ii. An adjoining vacant lot (lot), located in Mecosta County, MI, Tax ID: 54-1142582 000, commonly known as 11227 Lake Road, Stanwood, MI, 49346.
iii. The household contents of the cottage, including 4 boats/engines, appliances and furniture, etc.
iv. Balance of Trust funds held in Charter One Bank and Fidelity Investments accounts.
In 2009, all beneficiaries agreed to contribute $8000 into a Fidelity Investments Trust account to be used for operating expenses of the cottage. Rental and user fees would be deposited in the Charter One Trust account for smaller expenses. (Exhibit B)
Numerous accounting irregularities and disagreements between myself and the other beneficiaries caused me to request my final share and they offered to buy me out as opposed to sell the properties. Scott Opperthauser then proclaimed that the vacant lot and funds in the Trust account should be excluded as a Trust asset based upon a document titled “Special Instructions to the Trustees…” he claimed our father had him type which Scott believed was to be part of the Trust Documents. (Exhibit C).
I disputed the document and on July 7, 2014 a licensed Appraiser determined values for both properties, provided to all parties and approved to their value. I created a spreadsheet with all other assets included and a Final Distribution Agreement was presented and agreed upon by all. (Exhibit D).
The following day, Kathy Wiltsie and Scott Opperthauser alleged there was a statute requiring the property values be reduced by 6% for realtor sales commissions which I disputed since they wouldn’t produce evidence of such a law. (Exhibit E).
I offered a compromise that based on when the property was sold, I would pay a certain percentage of my share of the actual sales costs incurred however my offer was dismissed as they indicated they had no intention to sell either property. (Exhibit F).
I made several additional attempts to resolve the stalemate including requests to meet with an attorney – which I offered to pay for. After numerous delays and excuses, the effort was to no avail. (Exhibit G).
In May of 2014, I again reminded Kathy and Scott of our parents’ wishes when they created the Trust was to avoid court intervention and its cost but they left me no other option. They then reluctantly agreed to meet with an attorney which Kathy selected from a list of three names I gave her.
A meeting was scheduled for November 4, 2014 after I was told a new appraisal would be done prior to the meeting.
We met with attorney Adam Keilen on November 4, 2014 during which Scott indicated that while I was told the appraisal was completed, it had not been – that Scott met the appraiser at the cottage in mid-October in order to point out several problems.
Mr. Keilen scheduled the appraisal after our meeting, and its results incorporated into the Final Distribution Agreement that Mr Keilen drafted and provided me for signature on November 8, 2014. (Exhibit H).
The Agreement contained estimated bank account balances, incorrect property tax ID’s, and other errors. In addition, only one of the two properties was appraised, causing me to reject the Agreement. Given the account balances as presented were far less than I estimated based on historical data, I emailed all parties asking for a listing of ALL Trust assets, both known and unknown to me. (Exhibit I). Two days later, Scott responded indicating a separate account was created and which rental and user fees were deposited into. (Exhibit J)
Accordingly, I contacted a criminal attorney to obtain his opinion on their actions and he advised me to contact the authorities as what they did was in fact embezzlement (which I declined to do) then shared the attorney’s opinion with Kathy and Scott, asking them to just settle this fairly. That led to Scott accusing me of extortion, while disparaging me to others in the family including my children.
They have blatantly disregarded me as a beneficiary, ignored my numerous requests for Trust banking records, ignored and or deliberately delayed my attempts to settle this and obtain my final share.
After literally dozens of emails, phone calls, text messages etc. were ignored, I engaged an attorney in yet another effort to follow the Trust’s directives and intent and our parents’ wishes when creating the Trust and settle this out of court. The attorney sent a strong demand letter to both Kathy and Scott. This too was ignored (Exhibit K).
Kathy emailed me on April 6?, 2016 stating not to contact her but she would contact me when they were ready to settle. As of today, Aug. _, I’ve gotten no such communication from her or Scott.
The Trustees approved the appraisal amounts and the distribution agreement in 2013 only to derail the settlement with their fake law regarding the 6% reduction. Since then, they have purposely stalled, delayed and ignored me, presumedly knowing the longer this went on, the more they would profit, using the $80,000 they should have personally paid to me in the buy-out. Instead, they delayed every attempt to settle this then simply ignored all my requests to do so as well as my requests for Trust financial data.
They used, enjoyed and benefited from the cottage while my share subsidized their ownership interest. I neither had access nor use of the cottage as they refused to buy me out, since June, 2013.
During this period of time, the Trustees committed several serious breaches of trust including:
i. Failing to provide and keep a complete accounting of all Trust assets and failing to disclose all Trust assets.
ii. Diverting Trust assets into a personal bank account.
iii. Created two E. Opperthauser Living Trust accounts with Charter One Bank (renamed Citizens bank on 4/27/15), on or about 2/16/11, deliberately indicating ownership of the account as Kathy Wiltsie and Scott Opperthauser – co-trustees.
At that time, Kathy and I were co-trustees. Scott replaced me on 11/24/14. (Exhibit L).
Kathy comingled Trust assets with her own for the Charter One Trust account. I learned of this after she complained of having to make copies of the statements for me for my annual reporting although entered their transactions by hand for the report and when I asked her for the info. to get online access to the account, she refused. Her reason was because the Trust account was linked to her personal account at the same bank. I advised her as a Trustee she cannot comingle personal assets with the Trusts, then need for transparency and for me as a co-trustee to be fully aware of all Trust property. (Exhibit M).
Scott Opperthauser concealed for three years the monthly statements of two Trust accounts with Fidelity Investments that each held in excess of $1000. The statements were mailed to our parents’ home address, which he acquired as his share of the distribution. Only after I indicated my desire to be bought out and they wanted to purchase a new boat did Scott disclose the statements. The funds in the accounts were then used towards the purchase the boat. (Exhibit N).
A separate Trust account was opened in 2014 by Scott and Kathy, which they named the “E Opperthauser Trust”. The name was nearly identical to the E Opperthauser Living Trust. Presumedly, the name was chosen in order to avoid it being noticed by the CL Development Association (where the cottage is located) so they could avoid acknowledging in order to get away with not having disclose to them the ownership of the properties changed which would cause a new association dues be assessed retroactively, as well as to conceal the pontoon boat, purchased and insured with E Opperthauser Living Trust funds, from being included in any future buy out attempts.
As the boat is covered under the same insurance policy as the cottage – the E Opperthauser Living Trust, yet the ownership is shown and it is registered with the state as the E Opperthauser Trust (“living” omitted), an accident involving the boat may not be covered and each beneficiary could be personally liable for any claim. (Exhibit O).
Scott Opperthauser fabricated a document titled “Special Instructions to the Trustees…”, indicating Earl had him type it in order to include in the Trust, contradicting an earlier claim he made in an email dated______, stating our Mom told him she didn’t think Dad had a will or Trust. (Exhibit P)
The Trustees have shown blatant indifference to beneficiary Steve Opperthauser’s requests to receive his remaining share of the Trust assets and therefore breached their fiduciary duty by not expeditiously distributing him his share.
The Trustees have profited from their breach of trust by way of ignoring his requests to receive his share. The longer they did the more the profited, using the money invested in their personal investment accounts.
Steve Opperthauser has not only incurred hundreds of thousands of dollars in losses due to those lost opportunity costs, he had to make an early withdrawal from his retirement account in order to cover living expenses. Had he received his share of the distribution as he should have in 2013 as he planned, the early withdrawal would not have been necessary.
Scott and Kathy articulated their knowledge of the importance and value of having money fully invested and the time value of money. This is best evidenced by Scott Opperthauser’s email dated March 19, 2010 wherein he argues he lost out on significant market gains by not receiving his share of the distribution for the two months he didn’t move into the home he choose to receive as his share of the estate. (Exhibit Q)
The distribution amount Petitioner should have received in July of 2013, $81,445.00. based on unanimous agreement. Today that distribution would amount to over $245,134.22 were it invested in the S & P 500 index fund Petitioner has invested most his other cash. (Exhibit T). In addition, Petitioner had to take early withdrawal from his Roth retirement account, incurring not only tax penalties by doing so but the future tax free gains he would benefit from.
The Trustees have breached their duties as Trustees, violating MCL 700.7901(1) acting with reckless indifference to Petitioner’s interest as a beneficiary, deliberately ignoring dozens of his communications requesting to resolve this matter.
The Trustees have not provided Petitioner with financial reports, complete records and an accounting of the Trust assets and have not kept accurate records of all transactions and disbursements of the Trust assets.
Trustee Wiltsie indicated her personal bank account was comingled with the Trust account as her reason for denying Steve online access to the Charter One Trust account. (Exhibit R).
I have personally spent at least 400 hours of time in my role as co-trustee, writing hundreds of pages of emails on Trust matters, spent over 60 hours on research for Trust related matters and meeting with advisers. I personally incurred over $1200 in legal fees and other expenses without being reimbursed or compensated. In addition, furniture I purchased for the cottage, including a queen mattress set which cost over $600, I was never reimbursed for.
The Trustees have taken advantage of my desire to follow the intent set forth by our parents when they created the Trust – to resolve this matter without court intervention. They have purposely delayed and ignored my requests to resolve this otherwise, declaring it unnecessary and expensive to involve attorneys and the court. They’ve taken full advantage of my patience with them and trying to maintain a cordial, family focused resolution, all the while benefiting themselves.
LEGAL ARGUMENTS
Breach of Trust
Trustees have a duty to deal fairly, wisely, and prudently when dealing with the property of another. See MCL 700.7302; Weathervane Window, Inc. v. White Lake Constr. Co., 192 Mich. App. 316, 325-326; 480 N.W.2d 337 (1991).
MCL 700.7901(1) of the Michigan Trust Code (MTC), MCL 700.7101 et seq., defines “breach of trust” as a violation by a trustee of a duty the trustee owes to a trust beneficiary. According to MCL 700.7901(1), “[a] violation by a trustee of a duty the trustee owes to a trust beneficiary is a breach of trust” Further, Restatement (Second) of Torts § 874 (1977) (“One standing in a fiduciary relation with another is subject to liability to the other for harm resulting from a breach of duty imposed by the relation.
According to MCL 700.7910(2) a trustee is personally liable for an obligation arising from ownership or control of the trust estate property or for a tort committed in the course of administration of the trust estate only if the trustee is personally at fault.
Although the trustee has extensive control over the trust, he or she is ultimately liable to the beneficiaries. See MCL 700.7816 (listing the general powers of a trustee); MCL 700.7817 (listing specific powers of a trustee); MCL 700.7901 (listing remedies for a breach of trust by a trustee); MCL 700.7902 (noting that a trustee is liable to the trust beneficiaries for a breach of trust).
In the instant action, the Trustee committed several breaches of his duty. For instance, there were numerous accounting irregularities, which caused me to request my final share. Besides, the Trustee blatantly disregarded me as a beneficiary, and ignored my numerous requests for Trust banking records. It follows; the Trustees have failed to keep complete records and an accounting of the Trust assets and have not kept accurate records of all transactions and disbursements of the Trust assets.
The Trustees have shown blatant indifference to beneficiary Steve Opperthauser’s requests to receive his remaining share of the Trust assets and therefore breached their fiduciary duty by not expeditiously distributing him his share.
The Trustees have profited from their breach of trust by way of ignoring his requests to receive his share.
Abuse of authority and commingling of trust and personal assets.
Trustees who fail to act in a professional, fiduciary manner should be held personally responsible for their unprofessionalism. Trust estates are not the personal assets of the trustee; the trustee’s job is to maintain the trust, not to exploit it or turn the trust assets into a windfall for himself. See Weathervane Window, Inc. v. White Lake Constr. Co., 192 Mich. App. 316, 325; 480 N.W.2d 337 (1991).
It is required that a “trustee shall keep trust property separate from the trustee’s own property.” MCL 700.7811(2).
The Trustee in the instant action days later, failed to inform me of any changes in the Trust. Notably, they failed to respond to my requests and proceeded to create a separate account and Trust, without making full disclosure of the accounts and proper records. Besides, Kathy comingled Trust assets with her own for the Charter One Trust account.
Fraud and misrepresentation.
To show fraud or misrepresentation, plaintiff must prove: (1) defendants made a misrepresentation; (2) defendants knew that they were making a misrepresentation or made it in a reckless manner; (3) such misrepresentation was material; (4) defendants made the misrepresentation with the intent that plaintiff would act upon it; (5) plaintiff acted in reliance upon it; and (6) plaintiff suffered damage. Arim v General Motors Corp, 206 Mich. App. 178, 195; 520 N.W.2d 695 (1994).
In the instant action, for instance, Scott Opperthauser fabricated a document titled “Special Instructions to the Trustees…”, indicating Earl had him type it in order to include in the Trust, contradicting an earlier claim he made in an email dated______, stating our Mom told him she didn’t think Dad had a will or Trust. Also, the Trustees derailed the settlement with their fake law regarding the 6% reduction. Since then, they have purposely stalled, delayed and ignored me, presumedly knowing the longer this went on, the more they would profit, using the $80,000 they should have personally paid to me in the buy-out.
CONCLUSION AND PRAYERS
In light of the foregoing, I pray this Honorable Court grants:
- An Order that the two properties remaining in the Trust are either sold and the proceeds distributed per the Trust Instrument or they be appraised and the values added to those of the remaining Trust assets after which I receive my rightful 25% share.
- An Order that I be awarded lost opportunity costs as determined at the time of settlement as consequential damages. In the alternative, the court awards me an amount it determines serves justice given the Trustees breach of duty.
- An Order that I be reimbursed $1450 for the expenses which I incurred during my role as co-trustee from 2009- 2014.
- An Order that I be compensated $9,945 for the 117 hours of time I worked on trust matters during my role as co-trustee from 2009 through 2014 and am awarded attorney fees in this matter.
- An Order sanctioning the Trustees for violating the numerous breach of trust acts and order any other relief the court deems appropriate as granted by MCL 700.7901 (1) (j).
- Any other Order this Court deems fit and just.
Dated: _
Respectfully Submitted,
.
STATE OF MICHIGAN PROBATE COURT
COUNTY OF OAKLAND
ORDER
FILE NO. __
This Matter came before me on _, and having heard both parties’ submissions, IT IS HEREBY ORDERED that the above petition is granted.
Date: ____
Judge: ___
Bar no.: __
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], copies of the foregoing Petition have been sent to all the Parties in the following address:
[ENTER PARTIES’ ADRESSES]
STATE OF MICHIGAN PROBATE COURT
COUNTY OF OAKLAND
PETITION TO COMPEL DISTRIBUTION OF ESTATE AND ORDER THEREOF
FILE NO. __
In the matter of E. Opperthauser Living Trust.
NOW COMES [ENTER NAME], Beneficiary in the said Trust, and for this Petition to Compel Distribution of estate states as follows:
FACTS
I, Steven Opperthauser, am one of four beneficiaries in the E. Opperthauser Living Trust. (Exhibit A). The other beneficiaries (siblings) are: Denise Albrecht and co-trustees Kathy Wiltsie and Scott Opperthauser.
The interested persons, addresses, and their representatives are as follows: Kathy L. Wiltsie, 23179 Farmington Rd. Farmington, MI, 48336; Scott E. Opperthauser 32216 Baintree Rd., Farmington Hills, MI 48334; and Denise A. Albrecht 23339 Cunningham Rd. Warren, MI 48091.
Kathy Wiltsie and I were originally appointed co-trustees by our parents Earl and Eugenia (Ann), who passed in 2008 and 2009 respectively.
All of the assets in the Trust except the following were distributed after our Mother’s death in 2009:
i. An 8-bedroom summer home (cottage), located in Mecosta County, MI, Tax ID: 54-1142583 000, commonly known as 11237 Lake Road, Stanwood, MI, 49346.
ii. An adjoining vacant lot (lot), located in Mecosta County, MI, Tax ID: 54-1142582 000, commonly known as 11227 Lake Road, Stanwood, MI, 49346.
iii. The household contents of the cottage, including 4 boats/engines, appliances and furniture, etc.
iv. Balance of Trust funds held in Charter One Bank and Fidelity Investments accounts.
In 2009, all beneficiaries agreed to contribute $8000 into a Fidelity Investments Trust account to be used for operating expenses of the cottage. Rental and user fees would be deposited in the Charter One Trust account for smaller expenses. (Exhibit B)
Numerous accounting irregularities and disagreements between myself and the other beneficiaries caused me to request my final share and they offered to buy me out as opposed to sell the properties. Scott Opperthauser then proclaimed that the vacant lot and funds in the Trust account should be excluded as a Trust asset based upon a document titled “Special Instructions to the Trustees…” he claimed our father had him type which Scott believed was to be part of the Trust Documents. (Exhibit C).
I disputed the document and on July 7, 2014 a licensed Appraiser determined values for both properties, provided to all parties and approved to their value. I created a spreadsheet with all other assets included and a Final Distribution Agreement was presented and agreed upon by all. (Exhibit D).
The following day, Kathy Wiltsie and Scott Opperthauser alleged there was a statute requiring the property values be reduced by 6% for realtor sales commissions which I disputed since they wouldn’t produce evidence of such a law. (Exhibit E).
I offered a compromise that based on when the property was sold, I would pay a certain percentage of my share of the actual sales costs incurred however my offer was dismissed as they indicated they had no intention to sell either property. (Exhibit F).
I made several additional attempts to resolve the stalemate including requests to meet with an attorney – which I offered to pay for. After numerous delays and excuses, the effort was to no avail. (Exhibit G).
In May of 2014, I again reminded Kathy and Scott of our parents’ wishes when they created the Trust was to avoid court intervention and its cost but they left me no other option. They then reluctantly agreed to meet with an attorney which Kathy selected from a list of three names I gave her.
A meeting was scheduled for November 4, 2014 after I was told a new appraisal would be done prior to the meeting.
We met with attorney Adam Keilen on November 4, 2014 during which Scott indicated that while I was told the appraisal was completed, it had not been – that Scott met the appraiser at the cottage in mid-October in order to point out several problems.
Mr. Keilen scheduled the appraisal after our meeting, and its results incorporated into the Final Distribution Agreement that Mr Keilen drafted and provided me for signature on November 8, 2014. (Exhibit H).
The Agreement contained estimated bank account balances, incorrect property tax ID’s, and other errors. In addition, only one of the two properties was appraised, causing me to reject the Agreement. Given the account balances as presented were far less than I estimated based on historical data, I emailed all parties asking for a listing of ALL Trust assets, both known and unknown to me. (Exhibit I). Two days later, Scott responded indicating a separate account was created and which rental and user fees were deposited into. (Exhibit J)
Accordingly, I contacted a criminal attorney to obtain his opinion on their actions and he advised me to contact the authorities as what they did was in fact embezzlement (which I declined to do) then shared the attorney’s opinion with Kathy and Scott, asking them to just settle this fairly. That led to Scott accusing me of extortion, while disparaging me to others in the family including my children.
They have blatantly disregarded me as a beneficiary, ignored my numerous requests for Trust banking records, ignored and or deliberately delayed my attempts to settle this and obtain my final share.
After literally dozens of emails, phone calls, text messages etc. were ignored, I engaged an attorney in yet another effort to follow the Trust’s directives and intent and our parents’ wishes when creating the Trust and settle this out of court. The attorney sent a strong demand letter to both Kathy and Scott. This too was ignored (Exhibit K).
Kathy emailed me on April 6?, 2016 stating not to contact her but she would contact me when they were ready to settle. As of today, Aug. _, I’ve gotten no such communication from her or Scott.
The Trustees approved the appraisal amounts and the distribution agreement in 2013 only to derail the settlement with their fake law regarding the 6% reduction. Since then, they have purposely stalled, delayed and ignored me, presumedly knowing the longer this went on, the more they would profit, using the $80,000 they should have personally paid to me in the buy-out. Instead, they delayed every attempt to settle this then simply ignored all my requests to do so as well as my requests for Trust financial data.
They used, enjoyed and benefited from the cottage while my share subsidized their ownership interest. I neither had access nor use of the cottage as they refused to buy me out, since June, 2013.
During this period of time, the Trustees committed several serious breaches of trust including:
i. Failing to provide and keep a complete accounting of all Trust assets and failing to disclose all Trust assets.
ii. Diverting Trust assets into a personal bank account.
iii. Created two E. Opperthauser Living Trust accounts with Charter One Bank (renamed Citizens bank on 4/27/15), on or about 2/16/11, deliberately indicating ownership of the account as Kathy Wiltsie and Scott Opperthauser – co-trustees.
At that time, Kathy and I were co-trustees. Scott replaced me on 11/24/14. (Exhibit L).
Kathy comingled Trust assets with her own for the Charter One Trust account. I learned of this after she complained of having to make copies of the statements for me for my annual reporting although entered their transactions by hand for the report and when I asked her for the info. to get online access to the account, she refused. Her reason was because the Trust account was linked to her personal account at the same bank. I advised her as a Trustee she cannot comingle personal assets with the Trusts, then need for transparency and for me as a co-trustee to be fully aware of all Trust property. (Exhibit M).
Scott Opperthauser concealed for three years the monthly statements of two Trust accounts with Fidelity Investments that each held in excess of $1000. The statements were mailed to our parents’ home address, which he acquired as his share of the distribution. Only after I indicated my desire to be bought out and they wanted to purchase a new boat did Scott disclose the statements. The funds in the accounts were then used towards the purchase the boat. (Exhibit N).
A separate Trust account was opened in 2014 by Scott and Kathy, which they named the “E Opperthauser Trust”. The name was nearly identical to the E Opperthauser Living Trust. Presumedly, the name was chosen in order to avoid it being noticed by the CL Development Association (where the cottage is located) so they could avoid acknowledging in order to get away with not having disclose to them the ownership of the properties changed which would cause a new association dues be assessed retroactively, as well as to conceal the pontoon boat, purchased and insured with E Opperthauser Living Trust funds, from being included in any future buy out attempts.
As the boat is covered under the same insurance policy as the cottage – the E Opperthauser Living Trust, yet the ownership is shown and it is registered with the state as the E Opperthauser Trust (“living” omitted), an accident involving the boat may not be covered and each beneficiary could be personally liable for any claim. (Exhibit O).
Scott Opperthauser fabricated a document titled “Special Instructions to the Trustees…”, indicating Earl had him type it in order to include in the Trust, contradicting an earlier claim he made in an email dated______, stating our Mom told him she didn’t think Dad had a will or Trust. (Exhibit P)
The Trustees have shown blatant indifference to beneficiary Steve Opperthauser’s requests to receive his remaining share of the Trust assets and therefore breached their fiduciary duty by not expeditiously distributing him his share.
The Trustees have profited from their breach of trust by way of ignoring his requests to receive his share. The longer they did the more the profited, using the money invested in their personal investment accounts.
Steve Opperthauser has not only incurred hundreds of thousands of dollars in losses due to those lost opportunity costs, he had to make an early withdrawal from his retirement account in order to cover living expenses. Had he received his share of the distribution as he should have in 2013 as he planned, the early withdrawal would not have been necessary.
Scott and Kathy articulated their knowledge of the importance and value of having money fully invested and the time value of money. This is best evidenced by Scott Opperthauser’s email dated March 19, 2010 wherein he argues he lost out on significant market gains by not receiving his share of the distribution for the two months he didn’t move into the home he choose to receive as his share of the estate. (Exhibit Q)
The distribution amount Petitioner should have received in July of 2013, $81,445.00. based on unanimous agreement. Today that distribution would amount to over $245,134.22 were it invested in the S & P 500 index fund Petitioner has invested most his other cash. (Exhibit T). In addition, Petitioner had to take early withdrawal from his Roth retirement account, incurring not only tax penalties by doing so but the future tax free gains he would benefit from.
The Trustees have breached their duties as Trustees, violating MCL 700.7901(1) acting with reckless indifference to Petitioner’s interest as a beneficiary, deliberately ignoring dozens of his communications requesting to resolve this matter.
The Trustees have not provided Petitioner with financial reports, complete records and an accounting of the Trust assets and have not kept accurate records of all transactions and disbursements of the Trust assets.
Trustee Wiltsie indicated her personal bank account was comingled with the Trust account as her reason for denying Steve online access to the Charter One Trust account. (Exhibit R).
I have personally spent at least 400 hours of time in my role as co-trustee, writing hundreds of pages of emails on Trust matters, spent over 60 hours on research for Trust related matters and meeting with advisers. I personally incurred over $1200 in legal fees and other expenses without being reimbursed or compensated. In addition, furniture I purchased for the cottage, including a queen mattress set which cost over $600, I was never reimbursed for.
The Trustees have taken advantage of my desire to follow the intent set forth by our parents when they created the Trust – to resolve this matter without court intervention. They have purposely delayed and ignored my requests to resolve this otherwise, declaring it unnecessary and expensive to involve attorneys and the court. They’ve taken full advantage of my patience with them and trying to maintain a cordial, family focused resolution, all the while benefiting themselves.
LEGAL ARGUMENTS
Breach of Trust
Trustees have a duty to deal fairly, wisely, and prudently when dealing with the property of another. See MCL 700.7302; Weathervane Window, Inc. v. White Lake Constr. Co., 192 Mich. App. 316, 325-326; 480 N.W.2d 337 (1991).
MCL 700.7901(1) of the Michigan Trust Code (MTC), MCL 700.7101 et seq., defines “breach of trust” as a violation by a trustee of a duty the trustee owes to a trust beneficiary. According to MCL 700.7901(1), “[a] violation by a trustee of a duty the trustee owes to a trust beneficiary is a breach of trust” Further, Restatement (Second) of Torts § 874 (1977) (“One standing in a fiduciary relation with another is subject to liability to the other for harm resulting from a breach of duty imposed by the relation.
According to MCL 700.7910(2) a trustee is personally liable for an obligation arising from ownership or control of the trust estate property or for a tort committed in the course of administration of the trust estate only if the trustee is personally at fault.
Although the trustee has extensive control over the trust, he or she is ultimately liable to the beneficiaries. See MCL 700.7816 (listing the general powers of a trustee); MCL 700.7817 (listing specific powers of a trustee); MCL 700.7901 (listing remedies for a breach of trust by a trustee); MCL 700.7902 (noting that a trustee is liable to the trust beneficiaries for a breach of trust).
In the instant action, the Trustee committed several breaches of his duty. For instance, there were numerous accounting irregularities, which caused me to request my final share. Besides, the Trustee blatantly disregarded me as a beneficiary, and ignored my numerous requests for Trust banking records. It follows; the Trustees have failed to keep complete records and an accounting of the Trust assets and have not kept accurate records of all transactions and disbursements of the Trust assets.
The Trustees have shown blatant indifference to beneficiary Steve Opperthauser’s requests to receive his remaining share of the Trust assets and therefore breached their fiduciary duty by not expeditiously distributing him his share.
The Trustees have profited from their breach of trust by way of ignoring his requests to receive his share.
Abuse of authority and commingling of trust and personal assets.
Trustees who fail to act in a professional, fiduciary manner should be held personally responsible for their unprofessionalism. Trust estates are not the personal assets of the trustee; the trustee’s job is to maintain the trust, not to exploit it or turn the trust assets into a windfall for himself. See Weathervane Window, Inc. v. White Lake Constr. Co., 192 Mich. App. 316, 325; 480 N.W.2d 337 (1991).
It is required that a “trustee shall keep trust property separate from the trustee’s own property.” MCL 700.7811(2).
The Trustee in the instant action days later, failed to inform me of any changes in the Trust. Notably, they failed to respond to my requests and proceeded to create a separate account and Trust, without making full disclosure of the accounts and proper records. Besides, Kathy comingled Trust assets with her own for the Charter One Trust account.
Fraud and misrepresentation.
To show fraud or misrepresentation, plaintiff must prove: (1) defendants made a misrepresentation; (2) defendants knew that they were making a misrepresentation or made it in a reckless manner; (3) such misrepresentation was material; (4) defendants made the misrepresentation with the intent that plaintiff would act upon it; (5) plaintiff acted in reliance upon it; and (6) plaintiff suffered damage. Arim v General Motors Corp, 206 Mich. App. 178, 195; 520 N.W.2d 695 (1994).
In the instant action, for instance, Scott Opperthauser fabricated a document titled “Special Instructions to the Trustees…”, indicating Earl had him type it in order to include in the Trust, contradicting an earlier claim he made in an email dated______, stating our Mom told him she didn’t think Dad had a will or Trust. Also, the Trustees derailed the settlement with their fake law regarding the 6% reduction. Since then, they have purposely stalled, delayed and ignored me, presumedly knowing the longer this went on, the more they would profit, using the $80,000 they should have personally paid to me in the buy-out.
CONCLUSION AND PRAYERS
In light of the foregoing, I pray this Honorable Court grants:
- An Order that the two properties remaining in the Trust are either sold and the proceeds distributed per the Trust Instrument or they be appraised and the values added to those of the remaining Trust assets after which I receive my rightful 25% share.
- An Order that I be awarded lost opportunity costs as determined at the time of settlement as consequential damages. In the alternative, the court awards me an amount it determines serves justice given the Trustees breach of duty.
- An Order that I be reimbursed $1450 for the expenses which I incurred during my role as co-trustee from 2009- 2014.
- An Order that I be compensated $9,945 for the 117 hours of time I worked on trust matters during my role as co-trustee from 2009 through 2014 and am awarded attorney fees in this matter.
- An Order sanctioning the Trustees for violating the numerous breach of trust acts and order any other relief the court deems appropriate as granted by MCL 700.7901 (1) (j).
- Any other Order this Court deems fit and just.
Dated: _
Respectfully Submitted,
.
STATE OF MICHIGAN PROBATE COURT
COUNTY OF OAKLAND
ORDER
FILE NO. __
This Matter came before me on _, and having heard both parties’ submissions, IT IS HEREBY ORDERED that the above petition is granted.
Date: ____
Judge: ___
Bar no.: __
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], copies of the foregoing Petition have been sent to all the Parties in the following address:
[ENTER PARTIES’ ADRESSES]
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