August 30, 2006, Introduced by Rep. Schuitmaker and referred to the Committee on Judiciary.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 2702 and 2722 (MCL 700.2702 and 700.2722),
section 2702 as amended by 2000 PA 54.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2702. (1) For the purposes of this act, except as
provided in subsection (4), an individual who is not established by
clear and convincing evidence to have survived an event, including
the death of another individual, by 120 hours is considered to have
predeceased the event.
(2) Except as provided in subsection (4), for purposes of a
provision of a governing instrument that relates to an individual
surviving an event, including the death of another individual, an
individual who is not established by clear and convincing evidence
to have survived the event by 120 hours is considered to have
predeceased the event.
(3) Except as provided in subsection (4), if it is not
established by clear and convincing evidence that 1 of 2 co-owners
with right of survivorship survived the other co-owner by 120
hours, 1/2 of the co-owned property passes as if 1 had survived by
120 hours and 1/2 as if the other had survived by 120 hours. If
there are more than 2 co-owners and it is not established by clear
and convincing evidence that at least 1 of them survived the others
by 120 hours, the property passes in the proportion that 1 bears to
the whole number of co-owners. For the purposes of this subsection,
"co-owners with right of survivorship" includes joint tenants,
tenants by the entireties, and other co-owners of property or
accounts held under circumstances that entitles 1 or more to the
whole of the property or account on the death of the other or
(4) Survival by 120 hours is not required under any of the
(a) The governing instrument contains language dealing
explicitly with simultaneous deaths or deaths in a common disaster
and that language is operable under the facts of the case. Language
dealing explicitly with simultaneous deaths includes language in a
governing instrument that creates a presumption that applies if the
evidence is not sufficient to determine the order of deaths.
(b) The governing instrument expressly indicates that an
individual is not required to survive an event, including the death
of another individual, by any specified period or expressly
requires the individual to survive the event by a specified period.
Survival of the event or the specified period, however, must be
established by clear and convincing evidence.
The imposition of a 120-hour requirement of survival would cause
a nonvested property interest or a power of appointment to fail
to qualify for validity under section 2(1)(a), (2)(a), or (3)(a)
of the uniform statutory rule against perpetuities, 1988 PA 418,
MCL 554.72, or to become invalid under section 2(1)(b), (2)(b),
or (3)(b) of the uniform statutory rule against perpetuities,
1988 PA 418, MCL 554.72.
The application of a 120-hour requirement of
survival to multiple governing instruments would result in an
unintended failure or duplication of a disposition. Survival,
however, must be established by clear and convincing evidence.
Sec. 2722. (1) Subject to subsection (3), if a trust is for a
specific lawful noncharitable purpose or for lawful noncharitable
purposes to be selected by the trustee, and if there is no definite
or definitely ascertainable beneficiary designated, the trust may
be performed by the trustee for 21 years, but no longer, whether or
not the terms of the trust contemplate a longer duration.
(2) Subject to this subsection and subsection (3), a trust for
the care of a designated domestic or pet animal is valid. The trust
terminates when no living animal is covered by the trust. A
governing instrument shall be liberally construed to bring the
transfer within this subsection, to presume against the merely
precatory or honorary nature of the disposition, and to carry out
the general intent of the transferor. Extrinsic evidence is
admissible in determining the transferor's intent.
(3) In addition to the provisions of subsection (1) or (2), a
trust covered by either of those subsections is subject to the
(a) Except as expressly provided otherwise in the trust
instrument, no portion of the principal or income may be converted
to the use of the trustee or to a use other than for the trust's
purposes or for the benefit of a covered animal.
(b) Upon termination, the trustee shall transfer the
unexpended trust property in the following order:
(i) As directed in the trust instrument.
(ii) If the trust was created in a nonresiduary clause in the
transferor's will or in a codicil to the transferor's will, under
the residuary clause in the transferor's will.
(iii) If no taker is produced by the application of subparagraph
(i) or (ii), to the transferor's heirs under section 2720.
(c) For the purposes of sections 2714 to 2716, the residuary
clause is treated as creating a future interest under the terms of
(d) The intended use of the principal or income can be
enforced by an individual designated for that purpose in the trust
instrument or, if none, by an individual appointed by a court upon
petition to it by an individual.
(e) Except as ordered by the court or required by the trust
instrument, no filing, report, registration, periodic accounting,
separate maintenance of funds, appointment, or fee is required by
reason of the existence of the fiduciary relationship of the
(f) The court may reduce the amount of the property
transferred if it determines that that amount substantially exceeds
the amount required for the intended use. The amount of the
reduction, if any, passes as unexpended trust property under
(g) If a trustee is not designated or no designated trustee is
willing or able to serve, the court shall name a trustee. The court
may order the transfer of the property to another trustee if the
transfer is necessary to ensure that the intended use is carried
out, and if a successor trustee is not designated in the trust
instrument or if no designated successor trustee agrees to serve or
is able to serve. The court may also make other orders and
determinations as are advisable to carry out the intent of the
transferor and the purpose of this section.
(h) The trust is not subject to the former uniform statutory
against perpetuities, 1988 PA 418.
, MCL 554.71 to 554.78.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 6365(request no.
07009'06) of the 93rd Legislature is enacted into law.