Groundbreaking Case in Estate Litigation

Adam Keilen Estate and Trust Litigation

Rachal v. Reitz; Mandatory Arbitration Agreements. Historically, according to most states, a mandatory arbitration agreement in a trust or a will is unenforceable. Yet, arbitration can be a great way for families to resolve disputes headed for drawn out estate litigation. Very few states have specific statutes that enforce such clauses; notably, Florida is one of them. Generally, courts find …

Truth in Lending; Mortgage Loans.

Adam Keilen Real Estate Law

As of June 1, 2013, Regulation Z has prohibited arbitration in mortgage lending. TILA and Regulation Z prohibit contracts that require arbitration in closed-end loans secured by a dwelling and open-end loans secured by a traditional consumer’s dwelling. The new regulations and the TILA provisions also provide that no mortgage loan agreement can be applied to “bar a consumer from …

Asset Protection/Creditors’ Rights/Confronting Transfers with Intent to Defraud

Adam Keilen Estate and Trust Litigation

Under the Uniform Fraudulent Transfer Act, Act 434 of 1998, a transfer is fraudulent, regardless of whether the claim arose before or after the transfer was made, if the transfer was executed with intent to hinder, delay, or defraud any creditor or if the transfer was executed without receiving a reasonably equivalent value. MCL § 566.34(1)(a)-(b). Therefore, the question is …

Estate Litigation

Adam Keilen Estate and Trust Litigation

An in terrorem clause in a will threatens that if anyone challenges the legality of the will, then that person will be cut off or merely given a dollar, instead of getting the full gift provided by the will. Recently, in In re Osborne Perry Trust, 2013 Mich. App. Lexis 321, the Michigan Appellate Court held that a beneficiary seeking …

Litigation – Damages in Business Tort Cases

Adam Keilen Litigation

The Michigan Supreme Court, in Schankin v. Buskirk, 354 Mich 390, 93 NW2d 293 (1958), using a flexible approach to damages, held that the rules for damages recoverable in a particular action should yield to the principle of compensation; in other words, whatever approach is most appropriate to compensate, for a client’s particular loss, should be adopted. Business tort compensation …

Amendment to 529 Educational Accounts

Adam Keilen Estate Planning

As of January 2, 2013, Public Act 552 of 2012 was signed and amends the law regarding asset exemptions, as they relate to creditors. The Act protects 529 plans from creditors; an interest in an educational trust account is exempt under a court judgment. MCL § 600.6023(1)(l)(iii). Michigan amended the previous statute and now provides additional protection subject to certain …

Premises Liability for Business Owners

Adam Keilen Real Estate Law

Generally, as a small business owner, what duty do I owe to my customers, as it relates to premises liability? The duty owed to a business invitee (generally, someone who is there for a commercial purpose) places certain requirements on possessors of land. For purposes of our discussion, the business owner must: i. maintain the premises in a reasonably safe …

Uncapping – Transfer From Parent to Child

Adam Keilen Estate Planning

The Michigan legislature passed a new law that impacts the way Michigan residential property taxes are assessed. Proposal A went into effect in January, 1995, and limited the amount a parcel of real property could appreciate each year for tax purposes. Under this law, the appreciation was limited to 5% or the rate of inflation, whichever was less. The value …

Buy-Sell Agreements

Adam Keilen Business/Corporate Law

Questions Surrounding Buy-Sell Agreements. What happens when one partner is ready to exit the business? What are they entitled to? What are the surrounding terms and conditions of the transition/payment? Similarly, what happens if a business partner suddenly dies? What happens if an ownership interest goes to a spouse? How do such events affect the management of your business? These …