Hein v. Hein

6 Citing cases

  1. Amor v. Schmoke (In re Estate of Larry E. Hutchinson Living Tr.)

    No. 326411 (Mich. Ct. App. Jul. 7, 2016)

    Mainly, Michigan common law recognizes that the beneficiaries of a trust may consent to the termination of the trust, so long as continuance of the trust is not necessary to carry out a material purpose of the Trust. See Rose v Southern Michigan Nat'l Bank, 255 Mich 275, 282; 238 NW 284 (1931), overruled in part on other grounds In re Edgar Estate, 425 Mich 364, 366; 389 NW2d 696 (1986); Hein v Hein, 214 Mich App 356, 359-360; 543 NW2d 19 (1995). It follows that if a material purpose of the Trust remains, Appellees and Joy could not, as a matter of law, terminate the Trust and its provisions may be enforced.

  2. Plains Commerce Bank, Inc. v. Beck

    2023 S.D. 8 (S.D. 2023)

    See Restatement (Second) of Trusts Section 338(1) cmts d, h. (Am. Law Inst. 1959) as cited in Brock v. Premier Tr., Inc., 2016 WL 927382 (Nev. 2016); "A trust may be modified, without regard to its original purpose, if the settlor and all beneficiaries consent." See also In re Green Valley Fin. Holdings, 32 P.3d 643, 646 (Colo.App. 2001); Hein v. Hein, 543 N.W.2d 19, 20 (Mich. Ct. App. 1995). "A spendthrift clause, in and of itself, does not prevent modification."

  3. Brock v. Premier Trust, Inc. (In re Frei Irrevocable Trust Dated Oct. 29, 1996)

    390 P.3d 646 (Nev. 2017)   Cited 17 times
    Outlining the five elements of judicial estoppel and recognizing that the third element-that "the party was successful in asserting the first position"-presupposes judicial endorsement of the position

    A trust may be modified, without regard to its original purpose, if the settlor and all beneficiaries consent. Restatement (Second) of Trusts § 338(1) (Am. Law Inst. 1959) ;see also In re Green Valley Fin. Holdings, 32 P.3d 643, 646 (Colo. App. 2001) ; Hein v. Hein, 214 Mich.App. 356, 543 N.W.2d 19, 20 (1995). Even if all beneficiaries do not consent, those who desire modification may, together with the settlor, modify the trust unless the nonconsenting beneficiaries' interests will be prejudiced. Restatement (Second) of Trusts § 338(2) (1959) ; see alsoMusick v. Reynolds, 798 S.W.2d 626, 630 (Tex. App. 1990).

  4. Swider v. David McHugh Tr.

    No. 358935 (Mich. Ct. App. Mar. 2, 2023)   Cited 1 times

    Michigan has a long history of recognizing this distinction. See, e.g., Bankers' Trust Co of Muskegon v Forsyth, 266 Mich. 517, 519-521; 254 N.W. 190 (1934) (holding that judgments entered against company as trustee could not be enforced against the company individually); Hein v Hein, 214 Mich.App. 356, 358; 543 N.W.2d 19 (1995) (observing that the respondent consented to termination of trust as beneficiary, while objecting in capacity as trustee). The only evidence before the trial court concerning this issue was the quitclaim deed executed by TSB in favor of McHugh.

  5. In re SAI Holdings Ltd.

    Case No. 06-33227 (Bankr. N.D. Ohio Apr. 1, 2013)

    While the Michigan Trust Code does not apply to liquidation trusts such as the SAI Trust, see Mich Comp. Laws § 700.7102 (providing that the Michigan Trust Code "applies to trusts as defined in section 1107") and § 700.1107 (defining "trust" to exclude liquidation trusts), common law trust principles similar to those set forth in § 700.7815(1) do apply. In determining common law trust principles where other authority is unavailable, Michigan courts often look to, and rely on, principles set forth in the Restatement of Trusts. See, e.g., Stokes v. Rupert, No. 298605, 2011 WL 3761459, *1 (Aug. 25, 2011); Hein v. Hein, 214 Mich. App. 356, 359-60 (1995); Coverston v. Kellogg, 136 Mich. App. 504 (1984). The Restatement (Third) of Trusts provides that "[w]hen a trustee has discretion with respect to the exercise of a power, its exercise is subject to supervision by a court only to prevent abuse of discretion."

  6. Neeley v. Neeley

    26 Kan. App. 2 (Kan. Ct. App. 2000)   Cited 4 times

    Once he died, however, the Trust became irrevocable and unmodifiable, and the consent of all the beneficiaries is insufficient to modify the Trust. Cf.Musick v. Reynolds, 798 S.W.2d 626, 629 (Tex.App.1990) (noting irrevocable spendthrift trust can be modified if settlor is alive and both settlor and all beneficiaries consent, and there is no incapacity to consent by any party); Hein v. Hein, 214 Mich.App. 356, 359, 543 N.W.2d 19 (1995) (noting comments to Restatement of Trusts § 338 indicate irrevocable spendthrift trust may be terminated when the settlor and the beneficiaries consent).         The plaintiffs also argue an unforseen change of circumstances frustrated the purpose of the Trust.