If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re LINDA COMPS-KLINGE TRUST.
JEAN M. PATTERSON, Trustee of the LINDA UNPUBLISHED
COMPS-KLINGE TRUST, March 17, 2022
Appellee,
v No. 356313
Allegan Probate Court
ROBERT KLINGE, LC No. 19-062003-TT
Appellant.
In re ESTATE OF LINDA SUE COMPS-KLINGE.
JEAN M. PATTERSON, Personal Representative of
the ESTATE OF LINDA SUE COMPS-KLINGE,
Appellee,
v No. 356325
Allegan Probate Court
ROBERT KLINGE, LC No. 19-061518-DE
Appellant.
Before: RIORDAN, P.J., and K. F. KELLY and SWARTZLE, JJ.
PER CURIAM.
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In these consolidated appeals,1 respondent, Robert Klinge, appeals by right the probate
court’s order granting petitioner, Jean M. Patterson, summary disposition pursuant to
MCR 2.116(C)(9) (failure to state a valid defense) and (10) (no genuine issue of material fact) and
denying respondent’s request to amend his pleadings. We reverse and remand to the trial court for
further proceedings consistent with this opinion.
I. FACTS
At the time of decedent’s death in December 2018, she and respondent had been married
for 25 years. Apparently unbeknownst to respondent, decedent created a will and trust in 2007.
Decedent named her sister, petitioner, as trustee. The trust agreement provided that if respondent
survived decedent, decedent’s personal effects would be allocated to the “Robert Klinge Trust.”
Decedent intended for respondent to have the ability to use decedent’s assets, including her home,
travel trailer, and other land, and that the assets be protected from respondent’s creditors.
Following respondent’s death, the assets would be distributed to decedent’s nieces and nephews,
including petitioner’s children. The trust agreement also included an “Incontestability Provision,”
which provided that any person who challenged decedent’s estate or trust agreement would be
disinherited.
After decedent’s death, respondent filed an objection to inventory and explained that
decedent owned their marital home before they were married, but that they lived there together for
their 25-year marriage. Further, respondent asserted that he and decedent “doubled the size” of
the home during their marriage, using both of their money. Likewise, respondent argued that he
and decedent bought the travel trailer and vacant land together. Respondent explained that the
assets were titled in decedent’s name alone in order to protect the assets from his creditors, as he
was involved in a lawsuit. Respondent asserted that he did not know that decedent deeded the
home and vacant land to her trust in 2007.
In response, petitioner filed a petition to register the trust and disinherit respondent in
accordance with the Incontestability Provision. Petitioner later moved for summary disposition
pursuant to MCR 2.116(C)(9) and (10). In response, respondent claimed for the first time that
petitioner exerted undue influence over decedent to influence decedent to title the joint assets in
decedent’s name alone and in setting up decedent’s trust without consultation with respondent.
Respondent further requested an opportunity to amend his pleadings. The probate court denied
respondent’s request to amend his pleadings and granted petitioner’s motion for summary
disposition, disinheriting respondent. The probate court later denied respondent’s motion for
reconsideration. This appeal followed.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision whether to grant a motion for summary
disposition pursuant to MCR 2.116(C)(10). Glasker-Davis v Auvenshine, 333 Mich App 222, 229;
964 NW2d 809 (2020). This Court also reviews de novo whether the pleadings sufficiently stated
1
See In re Linda Comps-Klinge Trust, unpublished order of the Court of Appeals, entered April 13,
2021 (Docket Nos. 356313 & 356325).
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a claim and “the sufficiency of any assertions of affirmative defense.” Id. A trial court properly
grants summary disposition under MCR 2.116(C)(9) when, even accepting the defendant’s well-
pleaded allegations as true, the defendant has failed to plead a valid defense to a claim. See Slater
v Ann Arbor Pub Sch Bd of Educ, 250 Mich App 419, 425; 648 NW2d 205 (2002). “Pleadings
include only complaints, cross-claims, counterclaims, third-party complaints, answers to any of
these, and replies to answers.” Id.
This Court reviews for an abuse of discretion a trial court’s decision on a motion for leave
to amend a pleading. Weymers v Khera, 454 Mich 639, 654; 563 NW2d 647 (1997). A trial court
abuses its discretion when its decision falls outside the range of reasonable and principled
outcomes. In re Kostin Estate, 278 Mich App 47, 51; 748 NW2d 583 (2008).
III. DISCUSSION
Respondent argues that the probate court erred by denying his motion to amend his
pleadings to add a claim of undue influence, and further, that the probate court erred by granting
petitioner’s motion for summary disposition under MCR 2.116(C)(10) because he established a
genuine issue of material fact with regard to that claim. We agree with the first argument and
decline to address the second argument.2
A settlor’s intent “is to be carried out as nearly as possible.” In re Kostin Estate, 278 Mich
App 47, 53; 748 NW2d 583 (2008). Generally, in terrorem clauses are valid and enforceable. In
re Estate of Stan, 301 Mich App 435, 443; 839 NW2d 498 (2013). However, MCL 700.7113
provides as follows:
A provision in a trust that purports to penalize an interested person for
contesting the trust or instituting another proceeding relating to the trust shall not
be given effect if probable cause exists for instituting a proceeding contesting the
trust or another proceeding relating to the trust.
“Probable cause exists when, at the time of instituting the proceeding, there was evidence
that would lead a reasonable person, properly informed and advised, to conclude that there was a
substantial likelihood that the challenge would be successful.” In re Estate of Stan, 301 Mich App
at 444 (quotation marks and citation omitted). MCL 700.7406 provides that “[a] trust is void to
the extent its creation was induced by fraud, duress, or undue influence.”
“To establish undue influence it must be shown that the grantor was subjected to threats,
misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower
volition, destroy free agency, and impel the grantor to act against the grantor’s inclination and free
2
Respondent does not argue that the probate court erred by implicitly concluding that his original
objection to inventory, as drafted, did not satisfy MCL 700.7113. Thus, we assume without
deciding that the probate court properly granted petitioner’s motion for summary disposition to
that extent.
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will.” In re Estate of Erickson, 202 Mich App 329, 333; 508 NW2d 181 (1993). There exists a
presumption of undue influence when evidence has been introduced that would establish:
(1) the existence of a confidential or fiduciary relationship between the grantor and
a fiduciary, (2) the fiduciary, or an interest represented by the fiduciary, benefits
from a transaction, and (3) the fiduciary had an opportunity to influence the
grantor’s decision in that transaction. [Id.]
Motive, opportunity, and ability to control are not enough to establish undue influence
without “affirmative evidence that it was exercised.” Id.
In this case, there is no dispute that respondent did not assert undue influence as a direct
claim in his objection to inventory, nor did he assert it as an affirmative defense in his response to
the petition to disinherit him. Additionally, undue influence was not significantly implied as a
claim in those filings by respondent. Typically, only claims that are raised in the pleadings may
be litigated. See Lenawee Co v Wagley, 301 Mich App 134, 160; 836 NW2d 193 (2013).
However, courts have the power to amend pleadings in any proceedings “for the
furtherance of justice.” MCL 600.2301. MCR 2.118(A)(1) provides that a “party may amend a
pleading once as a matter of course within 14 days after being served,” and MCR 2.118(A)(2)
provides that a party may otherwise amend a pleading “by leave of the court or by written consent
of the adverse party.” Further, leave to amend “shall be freely given when justice so requires.”
MCR 2.118(A)(2). Therefore, amendment is generally a matter of right rather than “grace,” and a
court’s discretion is limited under the standard that “leave shall be freely given when justice so
requires.” Ben P Fyke & Sons, Inc v Gunter Co, 390 Mich 649, 658-659; 213 NW2d 134 (1973).
MCR 2.116(I)(5) provides that a trial court “shall give the parties an opportunity to amend their
pleadings as provided by MCR 2.118” when the grounds for summary disposition are based on
MCR 2.116(C) (8), (9), or (10), unless the amendment would not be justified.
“A motion to amend ordinarily should be granted.” Weymers, 454 Mich at 658. A trial
court should only deny a motion to amend on the basis of undue delay, bad faith or dilatory motive,
repeated failure to cure deficiencies, undue prejudice to the defendant, or futility. Id. Delay alone
does not just the denial of a motion to amend. Id. at 659. Further, prejudice does not mean that
the “amendment may cause the opposing party to ultimately lose on the merits.” Id. Instead,
prejudice exists when an “amendment would prevent the opposing party from receiving a fair
trial.” Id. A party may be unable to receive a fair trial if, because of the delay, witnesses or
necessary evidence was no longer available. Id. Prejudice may exist “when the moving party
seeks to add a new claim or a new theory of recovery on the basis of the same set of facts, after
discovery is closed, just before trial, and the opposing party shows that he did not have reasonable
notice, from any source, that the moving party would rely on the new claim or theory at trial.” Id.
at 659-660.
A trial court hearing a motion for summary disposition must grant parties the opportunity
to amend pleadings so long as the amendment would not be futile. Id. at 658, citing
MCR 2.116(I)(5). An amendment is futile when, “(1) ignoring the substantive merits of the claim,
it is legally insufficient on its face; (2) it merely restates allegations already made; or (3) it adds a
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claim over which the court lacks jurisdiction.” PT Today, Inc v Comm’r of Fin & Ins Serv, 270
Mich App 110, 143; 715 NW2d 398 (2006) (citations omitted).
The probate court found that “an amendment would not invoke MCL 700.7113” and would
not survive summary disposition because respondent did not fulfill the burden of establishing a
presumption of undue influence. However, this reasoning does not support a finding that an
amendment would be futile. First, respondent’s proposed amendment would not be legally
insufficient on its face. See id. A supported claim of undue influence would provide probable
cause to challenge the trust agreement, thereby avoiding the effect of the Incontestability
Provision. See MCL 700.7113; MCL 700.7406. Therefore, the amendment would not be “legally
insufficient on its face.” See PT Today, Inc, 270 Mich App at 143. Second, the amendment would
not simply restate allegations already made, particularly as petitioner specifically argues that
respondent did not originally raise undue influence as an issue. See id. Instead, the amendment
would specifically challenge the creation of the trust, and the claim was not without facial merit.
A finding that petitioner exerted undue influence would invalidate the trust. See MCL 700.7406.
Finally, the amendment would not add a claim over which the probate court lacked jurisdiction,
and there was no indication that respondent engaged in bad faith or undue delay in the time before
he requested to amend his objection. See PT Today Inc, 270 Mich App at 143.
Therefore, because the probate court’s denial of respondent’s motion to amend resulted in
an injustice and the amendment would not be futile, we conclude that the probate court abused its
discretion by denying that motion. See id. at 142. Having so concluded, we further conclude that
the probate court erred by prematurely addressing the merits of the undue-influence claim. In
other words, where respondent was entitled to amend his pleadings to add that claim, the probate
court should have allowed for further proceedings to address the merits of that claim—which may
include a grant of summary disposition at a later date. Compare Wolfenbarger v Wright, 336 Mich
App 1, __; __NW2d __ (2021) (Docket No. 350668); slip op at 13 (remanding to the trial court
for further proceedings as to the plaintiffs’ trespass and nuisance claims, which the plaintiffs had
unsuccessfully sought to raise in the trial court through a motion to amend the complaint).
IV. CONCLUSION
We conclude that the probate court abused its discretion by denying respondent’s motion
to amend. Therefore, we reverse its order to the contrary and remand to that court for further
proceedings consistent with our opinion. We do not retain jurisdiction.
/s/ Michael J. Riordan
/s/ Kirsten Frank Kelly
/s/ Brock A. Swartzle
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