Michigan Supreme Court
O Lansing, l\/Iichigan
November 28, 2005 clifford w T”Yl°t
Clnef]us'nce
Michael F. Cavanagh
l Elizabetli A. Weaver
Marilyn Kelly
l\/laura D. Corrigan
Robert P. Young, ]r.
BETTY SORKOWITZ, individually and as Trustee S*QP_}“’“J‘ M“‘km"‘”
for the MoRius & sARAH FRIEDMAN
IRREVOCABLE TRUST, Betty Sorkowitz,
Trustee for the SARAH FRIEDMAN TRUST,
Betty Sorlerg v Northwest Bank Wz`s, 2005 Wis 109 (2005), for a
more detailed discussion of Crummey clauses.
2 Defendants assert also that the plaintiffs who are not beneficiaries are not proper parties.
3 The four-corners rule states that extrinsic evidence is inadmissible to prove that a
testator’s intent is other than that set forth in the testator’,s will or trust.
document,‘* the attorney will be protected. lt seems obvious that such vast protection
prejudices the interests of people seeking the expert tax advice of estate planning
attorneys specifically and harms the legal profession in general.
l understand the concerns of the attorneys in this practice area. And l do not wish
them to have any less protection than that enjoyed by their colleagues in other areas of
the law. Conversely, estate planning attorneys should have the same degree of
accountability for their errors as do all other attorneys.
l agree with the Court of Appeals majority that the Mz`eras four-corners rule is
inapplicable to this case. Unlike Mz`eras, which involved trust preparation, this case
involves alleged malpractice for faulty tax advice. The question of standing should be
resolved only after further discovery in the trial court. Consequently, summary
disposition for defendants was erroneously entered.
MARKMAN, J., dissents and states as follows:
For the reasons set forth by Justice Kelly, l do not believe that the Court of
Appeals decision should peremptorily be reversed. Not to place too fine a point on this
dispute, decedents presumably hired defendant law firm to maximize their estate, yet
wound up paying an extra $l million to $l.§ million in taxes because of the absence of a
Crummey clause. l would add the following to Justice Kelly's statement: (l) l am not
persuaded that a testator's intent is accorded maximum respect by a legal malpractice
doctrine that denies an estate the ability to look to extrinsic evidence; (2) l am not
persuaded that attorneys generally should be immune from malpractice actions for failure
to apprise clients of fundamental tax-saving devices; (3) l am not persuaded that the
Court of Appeals unreasonably distinguished Mieras v Debona, 452 l\/lich 278, 303
(1996), in terms of disputes between beneficiaries and disputes raising claims of legal
malpractice; (4) l am not persuaded that a testator's intent, absent evidence to the
contrary, cannot be presumed as desiring that tax burdens upon his or her estate be
minimized through the use of reasonable tax-saving devices;§ and (5) l am not persuaded
that Mieras is relevantly cited, as it is here by the majority, for the proposition that "a
beneficiary may not ‘use extrinsic evidence to prove that the testator’s intent is other than
that set forth in the will."’ While this may be true, plaintiffs do not seek to use extrinsic
4 Such a clearly expressed legal mistake would be rare. Likely, the document would have
to contradict itself for the mistake to be found on its face.
5 l am not unaware that there arguably is evidence in this case to suggest that a Crummey
clause may not have been consistent with the testators’ intent. However, l would leave
this question for jury resolution rather than granting summary judgment for defendants.
evidence "to prove that the testator’s intent is other than that set forth in the will."
Rather, they seek to use such evidence to prove that defendants committed malpractice in
failing to advise the decedents about the advantages of a Crummey clause. ln other
words, they seek to use such evidence not to show the testators’ intent was different, but
rather to show that because of defendants’ negligence, the testators never formed a
different intent.
dll22
l, CORBIN R. DAVlS, Clerl< of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
,200 §
j Clerk