If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

In re MICHAEL EYDE TRUST.

WILLIAM JOSEPH COSTELLO, Trustee,

Appellant,

UNPUBLISHED

January 27, 2022

v No. 355947

Clinton Probate Court

RICHLAND ANIMAL RESCUE, INC., CAROL 

PALINSKI HILDEBRAND, ELIZABETH DALY 

UNIS, JULIE BAKER, and ATTORNEY 

GENERAL,

LC No. 20-030844-TV

Appellees.

In re MICHAEL EYDE TRUST.

WILLIAM JOSEPH COSTELLO, Trustee, UNPUBLISHED

Appellant,

v No. 356500

Clinton Probate Court

RICHLAND ANIMAL RESCUE, INC., CAROL 

PALINSKI HILDEBRAND, ELIZABETH DALY 

UNIS, and JULIE BAKER,

LC No. 20-030844-TV

Appellees.

Before: O’BRIEN, P.J., and STEPHENS and LETICA, JJ.

PER CURIAM.
-2-

In Docket No. 355947, appellant, William Joseph Costello, trustee of the Michael Eyde 

Trust (the Trust), appeals as of right an order denying Costello’s motion for summary disposition, 

in which he had alleged a lack of subject-matter jurisdiction over an objection raised by appellee 

Richland Animal Rescue, Inc. (Richland), to a change of situs of the Trust from Michigan to 

Illinois. In Docket No. 356500, Costello purports to appeal as of right1a later order requiring him 

to provide immediately the Eyde estate’s tax form (form 706) to the beneficiaries listed in the 

Trust, i.e., Julie Baker, Christopher Joseph Palinski (Christopher), Carol Palinski Hildebrand, 

Elizabeth Daly Unis, and Richland. We reverse in part and remand.2

I. DOCKET NO. 355947

In Docket No. 355947, Costello, primarily relying on Trust documents and statutory law, 

argues that the trial court erred by concluding that it had subject-matter jurisdiction over the 

proceedings. This Court reviews de novo whether a court has subject-matter jurisdiction and also 

reviews de novo issues of statutory construction and decisions regarding motions for summary 

disposition. Elba Twp v Gratiot Co Drain Comm’r, 493 Mich 265, 278; 831 NW2d 204 (2013); 

Piccione v Gillette, 327 Mich App 16, 18-19; 932 NW2d 197 (2019). Also subject to de novo 

review is “the proper interpretation of a trust.” In re Estate of Stan, 301 Mich App 435, 442; 839 

NW2d 498 (2013).

In general, “[s]ubject matter jurisdiction in particular is defined as the court’s ability to 

exercise judicial authority over that class of cases; not the particular case before it but rather the 

abstract power to try a case of the kind or character of the one pending.” Campbell v St John Hosp, 

434 Mich 608, 613-614; 455 NW2d 695 (1990) (quotation marks and citations omitted). “When 

a court is without jurisdiction of the subject matter, any action with respect to such a cause, other 

than to dismiss it, is absolutely void.” Fox v Bd of Regents of Univ of Mich, 375 Mich 238, 242; 

134 NW2d 146 (1965). “Probate courts are courts of limited jurisdiction. Const 1963, art 6, § 15. 

The jurisdiction of the probate court is defined entirely by statute.” In re Wirsing, 456 Mich 467, 

472; 573 NW2d 51 (1998).

MCL 700.7203(1) states that the probate court “has exclusive jurisdiction of proceedings 

in this state brought by a trustee or beneficiary that concern the administration of a trust as provided 

in section 1302(b) and (d).” MCL 700.1302 states, in part:

The court has exclusive legal and equitable jurisdiction of all of the 

following:

* * *

 

1 A question has been raised regarding whether Costello has an appeal as of right in Docket No. 

356500. This question is discussed infra.

2 We reverse and remand in Docket No. 355947. As explained infra, while Costello has not raised 

meritorious arguments about the order at issue in Docket No. 356500, its viability is dependent on 

further proceedings.
-3-

(b) A proceeding that concerns the validity, internal affairs, or settlement of 

a trust; the administration, distribution, modification, reformation, or termination 

of a trust; or the declaration of rights that involve a trust, trustee, or trust 

beneficiary, including, but not limited to, proceedings to do all of the following:

(i) Appoint or remove a trustee.

(ii) Review the fees of a trustee.

(iii) Require, hear, and settle interim or final accounts.

(iv) Ascertain beneficiaries.

(v) Determine a question that arises in the administration or distribution of 

a trust, including a question of construction of a will or trust.

(vi) Instruct a trustee and determine relative to a trustee the existence or 

nonexistence of an immunity, power, privilege, duty, or right.

(vii) Release registration of a trust.

(viii) Determine an action or proceeding that involves settlement of an 

irrevocable trust.

* * *

(d) A proceeding to require, hear, or settle the accounts of a fiduciary and 

to order, upon request of an interested person, instructions or directions to a 

fiduciary that concern an estate within the court’s jurisdiction. [Emphases added.]

However, MCL 700.7205(1) provides:

If a party objects, the court shall not entertain a proceeding under section 

7203 that involves a trust that is registered or that has its principal place of 

administration in another state, unless either of the following applies:

(a) All appropriate parties could not be bound by litigation in the courts of 

the state where the trust is registered or has its principal place of administration.

(b) The interests of justice would otherwise be seriously impaired. 

[Emphasis added; citation omitted.]

Given the language of MCL 700.7205(1), an important question to be answered is whether 

the Trust did, in fact, have its principal place of administration in another state by virtue of what 

Costello did before any proceedings were initiated.

MCL 700.7105(1) states, “Except as otherwise provided in the terms of the trust, this article 

governs the duties and powers of a trustee, relations among trustees, and the rights and interests of 

a trust beneficiary.” (Emphasis added.) Costello argues that the terms of the Trust (discussed 
-4-

shortly, infra) allowed him to transfer the principal place of administration of the trust to Illinois 

without following the notice requirements set forth in MCL 700.7108. MCL 700.7108 states:

(1) Without precluding other means for establishing a sufficient connection 

with the designated jurisdiction, terms of a trust designating the principal place of 

administration are valid and controlling if any of the following apply:

(a) A trustee’s principal place of business is located in or a trustee is a 

resident of the designated jurisdiction.

(b) A trust director’s principal place of business is located in, or a trust 

director is a resident of, the designated jurisdiction.

(c) All or part of the administration occurs in the designated jurisdiction.

(2) A trustee is under a continuing duty to administer the trust at a place 

appropriate to its purposes, its administration, and the interests of the qualified trust 

beneficiaries.

(3) Without precluding the right of the court to order, approve, or 

disapprove a transfer, the trustee, in furtherance of the duty prescribed by 

subsection (2), may transfer the trust’s principal place of administration to another 

state or to a jurisdiction outside of the United States.

(4) The trustee shall notify the qualified trust beneficiaries in writing of a 

proposed transfer of a trust’s principal place of administration not less than 63 days 

before initiating the transfer. The notice of proposed transfer must include all of the 

following:

(a) The name of the jurisdiction to which the principal place of 

administration is to be transferred.

(b) The address and telephone number at the new location at which the 

trustee can be contacted.

(c) An explanation of the reasons for the proposed transfer.

(d) The date on which the proposed transfer is anticipated to occur.

(e) In a conspicuous manner, the date, not less than 63 days after the giving 

of the notice, by which a qualified trust beneficiary must notify the trustee in writing 

of an objection to the proposed transfer.

(5) The authority of a trustee under this section to transfer a trust’s principal 

place of administration without the approval of the court terminates if a qualified 

trust beneficiary notifies the trustee in writing of an objection to the proposed 

transfer on or before the date specified in the notice.
-5-

(6) In connection with a transfer of the trust’s principal place of 

administration, the trustee may transfer some or all of the trust property to a 

successor trustee designated in the terms of the trust or appointed under section 

7704.

(7) The view of an adult beneficiary must be given weight in determining 

the suitability of the trustee and the place of administration.

Appellees contend that Costello needed to follow this statute and that the lack of 63 days 

of notice, as required by MCL 700.7108(4), rendered his attempt to transfer the principal place of 

administration from Michigan to Illinois ineffective.

3

 Costello relies, instead, on MCL 

700.7105(1) and on the following language from the article of the Trust labeled “administrative 

powers”:

Trustee has the power to perform every act that a reasonable and prudent 

investor would perform incident to the collection, preservation, management, use, 

and distribution of the trust assets to accomplish the desired result of administering 

the trust legally and in the best interest of the trust beneficiaries, without the 

approval of any court or beneficiary. . . . Trustee possesses . . . the authority to:

* * *

7.31 Situs of Trust. Change the situs and principal place of administration 

of any trust under this Agreement by notice to each current beneficiary; if a trust 

under this Agreement is registered, it may be registered in Ingham County, 

Michigan, in the jurisdiction in which the trust is being administered, or in a 

jurisdiction in which any trustee resides . . . . 

“When construing a trust, a court’s sole objective is to ascertain and give effect to the intent 

of the settlor. Absent ambiguity, the words of the trust document itself are the most indicative of 

the meaning and operation of the trust.” In re Stillwell Trust, 299 Mich App 289, 294; 829 NW2d 

353 (2012) (quotation marks and citation omitted). “[I]ntent [of the settlor] is gauged from the 

trust document itself, unless there is ambiguity.” In re Kostin, 278 Mich App 47, 53; 748 NW2d 

583 (2008). In In re Estate of Reisman, 266 Mich App 522, 527; 702 NW2d 658 (2005), this Court 

stated that “[t]he rules of construction applicable to wills also apply to the interpretation of trust 

documents.” The Reisman Court added that a “court may not construe a clear and unambiguous 

will in such a way as to rewrite it . . . .” Id. (quotation marks and citation omitted). Moreover, 

“[t]he rules in interpreting contracts are equally applicable to interpreting wills.” Czapp v Cox, 

179 Mich App 216, 219; 445 NW2d 218 (1989). Language in a contract is interpreted according 

to its ordinary and plain meaning, and technical or constrained constructions must be avoided. 

UAW-GM Human Resource Ctr v KSL Recreation Corp, 228 Mich App 486, 491-492; 579 NW2d 

411 (1998). A contract is ambiguous when the words employed can reasonably be understood in 

different ways. Id. at 491. “Courts are not to create ambiguity where none exists.” Id.

 

3 Appellees have not disputed that Costello had a residence and office in Illinois.
-6-

The notice provision of MCL 700.7108 applies except as provided otherwise by the Trust 

itself. MCL 700.7105(1). We conclude that the Trust is unambiguous in stating that the trustee 

can change the principal place of administration of the Trust by simple “notice” to each 

beneficiary. It is not disputed that the beneficiaries did, indeed, receive notice of the change. Rules 

of trust construction indicate that Costello effectively transferred the principal place of 

administration of the Trust to Illinois.

The parties dispute the meaning of two unpublished cases discussed by the lower court: In 

re Seneker Trust, unpublished per curiam opinion of the Court of Appeals, issued February 26, 

2015 (Docket Nos. 317003 and 317096), and In re Elizabeth Doll Trust, unpublished per curiam

opinion of the Court of Appeals, issued October 16, 2018 (Docket No. 341788). In In re Seneker 

Trust, unpub op at 2, JP Morgan Chase Bank, N.A., was the successor trustee after the death of the 

settlor of the trust in question. The settlor had been a resident of Florida. Id. at 1-2. Certain trust 

beneficiaries (the appellees) sought removal of JP Morgan as the trustee by filing a petition in the 

Oakland County Probate Court in Michigan. Id. at 2. The appellant argued that the Michigan 

court lacked subject-matter jurisdiction, stating that Florida law applied and that the principal place 

of administration of the trust had not been appropriately changed to Michigan. Id. This Court 

stated:

Appellees point out that MCL 700.7203(1) grants Michigan probate courts 

broad and exclusive jurisdiction over “proceedings in this state brought by a trustee 

or beneficiary that concern the administration of a trust . . . .” However, MCL 

700.7205(1) provides that, “[i]f a party [such as appellant in this case] objects, the 

court shall not entertain a proceeding under [MCL 700.7203] that involves a trust 

that is registered or that has its principal place of administration in another state[.]” 

(Emphasis added). Appellant argues, and we agree, that the Trust’s principal place 

of administration is in Florida and, therefore, the Michigan probate court was 

without subject-matter jurisdiction over appellees’ petition. [In re Seneker Trust, 

unpub op at 2 (alterations in original).]

The trust in question stated:

“Changing Situs of Trust. The TRUSTEE shall have the power to transfer 

or relocate the Trust’s principal place of administration and the situs of the property 

of any trust created under this Agreement to another county or state or to a 

jurisdiction outside of the United States. If necessary, the TRUSTEE may 

commence appropriate judicial proceedings to effectuate a transfer of situs. . . .” 

[Id. at 3 (alteration in original).]

The appellant argued that JP Morgan, to change the principal place of administration of the 

trust, needed to comply with Florida trust law regarding notice. Id. On the other hand, the 

“[a]ppellees argue[d] that such notice was not required because the above provision of the Trust 

trumped the notice requirements of FSA 736.0108(6) and (7).” In re Seneker Trust, unpub op at 

4. This Court rejected the appellees’ argument, stating that (1) there was no language in the trust 

stating that the statutory notice requirements did not apply, (2) the trust had been amended to omit 

language that had given the trustee “ ‘absolute discretion’ ” to change the situs of the trust, (3) the 

very language relied on by the appellees made reference to using the judicial process to effectuate 
-7-

a transfer, and (4) the settlor had changed the definition of the governing “ ‘state’ ” in the trust 

from Michigan to Florida. Id. at 4-5 (emphasis removed).

In In re Doll Trust, unpub op at 1, a successor trustee purportedly changed the situs of a 

trust from Michigan to Florida. The appellant attempted to remove the trustee by filing a petition 

in a Michigan court, but the court ruled that it lacked subject-matter jurisdiction because the trustee 

had had the authority to transfer the situs of the trust at her discretion. Id. at 2. This Court stated:

Appellant asserts that because [the trustee] improperly notified beneficiaries 

of her transfer of the principal place of administration of the Trust to Florida in 

2015, the transfer of situs did not occur, and the probate court therefore improperly 

concluded that it did not have jurisdiction to hear her petition for instruction. 

Appellant contends that [the trustee] was required to comply with the Michigan 

Trust Code, MCL 700.7101 et seq., and specifically MCL 700.7108(3)-(5) . . . . [In 

re Doll Trust, unpub op at 3.] 

The trust in that case stated:

“8.9 Situs of Trust, Michigan Law Controls, and Exemption from 

Registration: This trust shall not be subject to the registration requirement imposed 

by any State and shall be administered free from the active supervision of any court. 

Trustee is directed to take any and all action, if any, necessary to exempt the Trust 

from registration. Michigan law shall be applied to interpret this document and the 

situs of this Trust shall be in Michigan, provided however, Trustee may change the 

situs and governing state law in Trustee’s sole discretion. [Emphasis added.]” [Id. 

at 4.]

This Court ruled:

As appellees note, the requirements of MCL 700.7108(3) and (5), governing 

a transfer of the principal place of administration of a trust, apply only if a trust is 

silent as to how a trustee may change the principal place of administration of the 

trust. MCL 700.7105(1) provides, “Except as otherwise provided in the terms of 

the trust,” the Michigan Trust Code “governs the duties and powers of a trustee, 

relations among trustees, and the rights and interests of a trust beneficiary.” 

(Emphasis added.) MCL 700.7105(2) further provides that, with certain 

enumerated exceptions that do not apply in this case, “[t]he terms of a trust prevail

over any provision of this article . . . .” (Emphasis added.) When interpreting the 

meaning of a trust, this Court must ascertain and abide by the intent of the settlor. 

We must look to the words of the trust itself. The intent of the settler is to be carried 

out as nearly as possible. 

Because the Trust agreement governs the change of situs, the probate court 

was correct to conclude that [the trustee] was not required to provide the Trust’s 

beneficiaries notice of her intent to move the Trust’s situs in accordance with the 

Michigan Trust Code. Appellees were empowered by the Trust agreement to 

change the principal place of administration of the trust to Florida at their sole 
-8-

discretion. Because the proceeding involved a trust “that has its principal place of 

administration in another state,” the probate court properly concluded that it could 

“not entertain” the proceeding and dismissed appellant’s petition for instruction. 

MCL 700.7205(1). [In re Doll Trust, unpub op at 4 (quotation marks and citations 

omitted; first brackets in original).]

Unpublished opinions are not binding on this Court but may be viewed as persuasive. Cox 

v Hartman, 322 Mich App 292, 307; 911 NW2d 219 (2017). We find the reasoning in In re Doll 

Trust persuasive. The Court in that case stated that “because the Trust agreement governs the 

change of situs, the probate court was correct to conclude that [the trustee] was not required to 

provide the Trust’s beneficiaries notice of her intent to move the Trust’s situs in accordance with 

the Michigan Trust Code.” In re Doll Trust, unpub op at 4. Here, the Trust governs the change of 

situs. While it is true that the Trust in the present case does not include the “sole discretion” 

language used in In re Doll Trust, it does, as noted, state, in the article of the Trust labeled 

“administrative powers”:

Trustee has the power to perform every act that a reasonable and prudent 

investor would perform incident to the collection, preservation, management, use, 

and distribution of the trust assets to accomplish the desired result of administering 

the trust legally and in the best interest of the trust beneficiaries, without the 

approval of any court or beneficiary. . . . Trustee possesses . . . the authority to:

* * *

Change the situs and principal place of administration of any trust under this 

Agreement by notice to each current beneficiary[.] [Emphases added.]

The Trust also contains the following provision:

9.1 Governing Law. Trustee accepts the trust established by this 

Agreement under Michigan law. All questions concerning its validity, 

construction, and administration, except as otherwise specifically provided, shall 

be determined under Michigan law. To govern the administration of any trust under 

this Agreement, however, Trustee may elect to apply the law of another state where 

Trustee resides or has a place of business. Trustee may not elect to apply another 

law if the election would modify beneficial interests or limit the liability of Trustee. 

Trustee must give notice of an election to change governing law to each beneficiary 

entitled to an annual account for that trust. The effective date of the change of 

governing law shall be the date of or specified in the notice. [Emphasis added.]

In addition, MCL 700.7105(2) states:

The terms of a trust prevail over any provision of this article except the 

following:

(a) The requirements under sections 7401 and 7402(1)(e) for creating a 

trust.
-9-

(b) Except as otherwise provided in sections 7703a and 7703b, the duty of 

a trustee to administer a trust in accordance with section 7801.

(c) The requirement under section 7404 that the trust have a purpose that is 

lawful, not contrary to public policy, and possible to achieve.

(d) The power of the court to modify or terminate a trust under sections 

7410, 7412(1) to (3), 7414(2), 7415, and 7416.

(e) The effect of a spendthrift provision, a support provision, and a 

discretionary trust provision on the rights of certain creditors and assignees to reach 

a trust as provided in part 5.

(f) The power of the court under section 7702 to require, dispense with, or 

modify or terminate a bond.

(g) The power of the court under section 7708(2) to adjust a trustee’s 

compensation specified in the terms of the trust that is unreasonably low or high.

(h) The obligations imposed on a trust director in section 7703a(4) and (5).

(i) The duty under section 7814(2)(a) to (c) to provide beneficiaries with the 

terms of the trust and information about the trust’s property, and to notify qualified 

trust beneficiaries of an irrevocable trust of the existence of the trust and the identity 

of the trustee.

(j) The power of the court to order the trustee to provide statements of 

account and other information under section 7814(4).

(k) The effect of an exculpatory term under section 7703a(5)(b) or 7908.

(l) The effect of a release of a trustee or trust director from liability for 

breach of trust under section 7703a(8).

(m) The rights under sections 7910 to 7913 of a person other than a trustee 

or beneficiary.

(n) Periods of limitation under this article for commencing a judicial 

proceeding.

(o) The power of the court to take action and exercise jurisdiction.

(p) The subject-matter jurisdiction of the court and venue for commencing 

a proceeding as provided in sections 7203 and 7204.

(q) The requirement under section 7113 that 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 
-10-

exists for instituting a proceeding contesting the trust or another proceeding relating 

to the trust.

(r) The requirement under section 7703b(2)(d) regarding the eligibility of a 

trust’s sole beneficiary to be a separate trustee as that term is defined in section 

7703b.

The exceptions do not encompass a change to the principal place of administration under MCL 

700.7108.

Further, it seems apparent that In re Seneker Trust is distinguishable from the present case

because in that case, the trust had been amended to omit language that had given the trustee “ 

‘absolute discretion’ ” to change the situs of the trust and the very language relied on by the 

appellees made reference to using the judicial process to effectuate a transfer. In re Seneker Trust, 

unpub op at 4-5 (emphasis omitted).

Appellees in the present case note that the Trust had been registered in Michigan. MCL 

700.7204 states: 

(1) Except as otherwise provided in subsection (2), venue for a proceeding 

involving a trust is as follows:

(a) For a proceeding under section 7203 involving a registered trust, in the 

place of registration.

(b) For a proceeding under section 7203 involving a trust not registered in 

this state, in any place where the trust properly could be registered and, if the trust 

is created by will and the estate is not yet closed, in the county in which the 

decedent’s estate is being administered.

(c) As otherwise specified by court rule.

(2) If a trust has no trustee and has not been registered, venue for a judicial 

proceeding for the appointment of a trustee is as follows:

(a) In a county in this state in which a trust beneficiary resides.

(b) In a county in which any trust property is located.

(c) If the trust is created by will, in the county in which the decedent’s estate 

was or is being administered.

(d) As otherwise provided by court rule.

Venue is a separate question from jurisdiction. Venue assumes the existence of jurisdiction. See, 

generally, People v Gayheart, 285 Mich App 202, 216; 776 NW2d 330 (2009). This statute does 

not render invalid the analysis above regarding why the transfer of situs was effective.
-11-

Appellees cite MCL 700.7202(1), which states:

By registering a trust or accepting the trusteeship of a registered trust or a 

trust having its principal place of administration in this state or by moving the 

principal place of administration to this state, the trustee submits personally to the 

jurisdiction of the courts of this state regarding any matter involving the trust. 

Notice of a proceeding shall be given to the trustee in accordance with section 1401 

at the trustee’s address as stated in the registration or as reported to the court and to 

the trustees address then known to the petitioner.

This provision is not dispositive because personal jurisdiction and subject-matter jurisdiction are 

two different concepts. People v Lown, 488 Mich 242, 268; 794 NW2d 9 (2011). For example, a 

person may submit to or waive personal jurisdiction, but not subject-matter jurisdiction. See id. 

This statute also does not render invalid the analysis above regarding why the transfer of situs was 

effective.

We conclude that, under principles of statutory and trust construction, under the plain 

language of the Trust, and under the persuasive reasoning of In re Doll Trust, Costello effectuated 

a change to Illinois of the principal place of administration of the Trust and that the court had no 

authority to invalidate this transfer.

4

Once again, MCL 700.7205(1) provides:

If a party objects, the court shall not entertain a proceeding under section 

7203 that involves a trust that is registered or that has its principal place of 

administration in another state, unless either of the following applies:

(a) All appropriate parties could not be bound by litigation in the courts of 

the state where the trust is registered or has its principal place of administration.

(b) The interests of justice would otherwise be seriously impaired. 

[Emphasis added.]

The trial court stated that the Clinton Probate Court had jurisdiction, alternatively, under MCL 

700.7205(1)(b), stating:

In the case at bar, the proceeding in question involves a breach of trust 

action, impacting whether Richland Animal Rescue remains a charitable trust 

beneficiary under the Trust Agreement. Almost all of the property of the trust is 

located in mid-Michigan. (The only property outside of Michigan is a residence in 

Florida.) The underlying actions of the Trustee took place in Michigan. Richland 

Animal Rescue is located in Michigan. The Trust Agreement is registered in 

 

4 The issue might more properly be viewed as one of simple trust construction as opposed to an 

issue of subject-matter jurisdiction. The upshot, however, is that the trial court erred by concluding 

that MCL 700.7108 served to invalidate the transfer.
-12-

Clinton County, Michigan, and the Trust remains a registered Michigan charitable 

trust with the Attorney General’s office. Illinois has no connection to Eyde, the 

Trust, or the Trust property. It would be an inconvenient forum to force Richland 

Animal Rescue to defend its status as a Trust beneficiary in Illinois. Therefore, 

Michigan is the more appropriate forum to serve the interests of justice in this 

matter.

The court stated that Costello’s motion for summary disposition was denied and that the Clinton 

Probate Court “retains subject matter jurisdiction over the Richland Animal Rescue’s Objection to 

the transfer of the situs of the Trust Agreement.”

The problem with the trial court’s reliance on MCL 700.7205(1)(b) is that the only issue 

before the court at the time of its ruling was Richland’s objection to the transfer of the place of 

administration to Illinois. As discussed, Costello acted within his power in making the transfer

and the transfer is not subject to invalidation. Whether the probate court could entertain 

subsequently raised issues, such as whether Costello should be removed as trustee, despite the 

transfer to Illinois, is a separate question according to statutory language. See MCL 700.7205(1).5

The order on appeal in Docket No. 355947 is the lower court’s December 22, 2020 order, issued 

before Richland and Baker filed petitions seeking removal of Costello as trustee. Costello, in his 

motion for summary disposition, focused merely on whether the transfer of the situs had been 

proper under the Trust agreement because that was the sole issue being raised at the time. The 

court prematurely made a ruling regarding MCL 700.7205(1)(b), without Costello’s having had 

an opportunity to argue and fully develop his position that the interests of justice would not be 

seriously impaired if the court were to conclude that the various issues raised about Costello’s 

substantive actions as trustee should not be entertained in Michigan. MCL 700.7205(1). A motion 

for summary disposition under MCR 2.116(C)(4) can involve factual elements to be analyzed by 

a court. Weishuhn v Catholic Diocese of Lansing, 279 Mich App 150, 175-176; 756 NW2d 483 

(2008). Costello has not been given an adequate opportunity to present facts in support of his 

position that it would not seriously impair the interests of justice if the petitions filed after issuance 

of the order on appeal in Docket No. 355947 were litigated in Illinois.6

It must be reemphasized that the sole question facing the lower court was whether Costello 

had effectuated a transfer of the principal place of administration of the trust. Richland’s requested 

relief in its petition was to “enjoin[] . . . Costello . . . from transferring the principal place of 

administration of the Trust to Illinois.” The facts Costello needed to present to address this 

question, in light of the plain language of the Trust, were different in quality and quantity from the 

facts Costello would need to present to effectively address whether the interests of justice would 

be impaired if the beneficiaries’ other petitions were litigated in Illinois. For example, Costello, 

 

5 Removal of the trustee was the type of question being analyzed in the Doll and Seneker cases. 

In re Doll Trust, unpub op at 2; In re Seneker Trust, unpub op at 2. 

6 Costello argues about Richland’s standing. But Baker, too, filed a petition alleging impropriety 

by Costello and seeking his removal as trustee. There is no question whatsoever regarding Baker’s 

standing. Also, as discussed infra in connection with Docket No. 356500, Richland is a beneficiary 

of the Trust, and MCL 700.7203(1) speaks to proceedings brought by beneficiaries. 
-13-

in addressing the transfer issue, did not need to go into detail regarding how many potential 

witnesses might be located in Chicago because the transfer analysis was primarily an issue of 

statutory and trust interpretation. Costello simply stated that the Trust’s place of administration 

was Illinois and that the probate court lacked jurisdiction to hear a challenge to the trustee’s transfer 

decision. Whether MCL 700.7205(1)(b) should be used for further petitions is a question for 

further proceedings.

Our conclusion that Costello did not need to follow the notice provision of MCL 700.7108 

to effectuate the transfer renders moot his argument that applying the notice requirement of that 

statute would result in a Contract Clause violation.7 See US Const, art I, § 10, and Const 1963, art 

1, § 10.

II. DOCKET NO. 356500

Docket No. 356500 concerns the March 3, 2021 order for Costello to turn over the form 

706. Costello argues that Richland, in particular, had no standing to request the form 706; that the 

court should not have ordered the turning over of the form 706 at all; and that the court should 

have included a confidentiality provision in its order.

Issues of standing are reviewed de novo. Groves v Dep’t of Corrections, 295 Mich App 1, 

4; 811 NW2d 563 (2011). This issue also involves the interpretation of MCL 700.7814, regarding 

the provision of information to beneficiaries of trusts by trustees. As noted, this Court reviews de 

novo issues of statutory construction. Elba Twp, 493 Mich at 278. The decision regarding whether 

to issue a protective order is subject to review for an abuse of discretion. See, generally, PT Today, 

Inc v Comm’r of Office & Fin & Ins Servs, 270 Mich App 110, 151; 715 NW2d 398 (2006) 

(discussing discovery).

 

7 At any rate, this particular argument is not preserved and is therefore subject to plain-error review. 

See, e.g., People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). A primary consideration 

in analyzing a Contract Clause claim is whether there is, in fact, a contractual relationship. 

Aguierre v Michigan, 315 Mich App 706, 716; 891 NW2d 516 (2016). Costello has failed to 

provide any Michigan authority for concluding that a trust constitutes a contract and has therefore 

failed to establish any plain error. See also Tunick v Tunick, 201 Conn App 512, 525-526; 242 

A3d 1011 (2020) (discussing caselaw indicating that a trust is not a contract and stating that “the 

undertaking between the settlor and trustee is not properly characterized as contractual and does 

not stem from the premise of mutual assent to an exchange of promises”) (quotation marks and 

citation omitted). Additionally, in Studier v Mich Pub Sch Employees’ Retirement Bd, 472 Mich 

642, 661; 698 NW2d 350 (2005), the Court, in discussing a Contract Clause issue, noted that state 

policies do not normally create contractual relationships because they can be repealed or revised. 

In the present case, the Trust did not become irrevocable until Eyde’s death, which was after the 

enactment of MCL 700.7108. An application of Studier by analogy is a further indication that no 

plain error is apparent in connection with Costello’s constitutional argument.
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As an initial matter, appellees raise a jurisdictional challenge, arguing that Costello could 

not appeal the March 3, 2021 order as of right. We agree that an appeal as of right was not 

available. However, we are, for purposes of judicial economy, empowered to treat the claim of 

appeal as an application, grant the application, and address the issues raised. Wardell v Hincka, 

297 Mich App 127, 133 n 1; 822 NW2d 278 (2012). We choose to do so.

Costello contends that the trial court had no authority to order that the tax return be given 

to Richland, specifically, because Richland was only a “contingent beneficiary” and had no 

standing to request it.8 Richland, under the Trust, was to be given monies after a certain sum (i.e., 

$11,400,000) had been distributed to Baker, Christopher, Hildebrand, and Unis. A Trust inventory 

listed the net valuation of the Trust, as of February 29, 2020, as $174,869,000.

In In re Childress Trust, 194 Mich App 319, 321; 486 NW2d 141 (1992), the petitioner 

filed a petition for supervision of a trust. She claimed that “the probate court erred in characterizing 

her interest as contingent, and in denying on that basis her request for information and an 

accounting.” Id. This Court stated:

It appears [] that the trust provides for discretionary payments from principal and 

income for the support of a lifetime beneficiary and for the remainder to go to 

petitioner and her father. The trust instrument provides for alternative distribution 

of the remainder interests in the event the remaindermen do not survive the life 

beneficiary. [Id.]

The trustee argued that only presently vested beneficiaries were entitled to information. Id. at 322. 

This Court stated:

The probate court and the trustee have miscast petitioner’s interest in the trust as a 

contingent interest in the remainder. The trustee relies on two “contingencies”: (1) 

that petitioner must survive the primary income beneficiary, and (2) that there must 

be assets left in the trust after the primary beneficiary’s death. These are not 

conditions that render a remainder interest contingent rather than vested.

A remainder interest vests upon the death of the grantor, not upon the death 

of the life tenant. The possibility of the death of the remainderman before the life 

tenant does not prevent taking a vested remainder.

A remainder interest that becomes possessory upon the death of the lifetime 

beneficiary is vested even if the holder of the life interest may invade the principal 

and has discretion to exhaust the corpus. Where the trust provides that the trustee 

may invade the entire corpus of the estate if necessary to support and provide 

medical care for the income beneficiary, the persons named as being entitled to the 

corpus upon the death of the income beneficiary have a vested remainder interest 

 

8

It is not disputed that a request derived from proper standing was made by other beneficiaries.
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in the corpus of the trust subject to defeasance if the entire corpus is used as 

described. [Id. at 323 (citations omitted).]

MCL 700.7814 states, in part:

(1) A trustee shall keep the qualified trust beneficiaries reasonably informed 

about the administration of the trust and of the material facts necessary for them to 

protect their interests. Unless unreasonable under the circumstances, a trustee 

shall promptly respond to a trust beneficiary’s request for information related to 

the administration of the trust.

(2) A trustee shall do all of the following:

(a) Upon the reasonable request of a trust beneficiary, promptly furnish to 

the trust beneficiary a copy of the terms of the trust that describe or affect the trust 

beneficiary’s interest and relevant information about the trust property. [Emphases 

added.]

These statutes refer to responding to a “trust beneficiary’s” request, not just to a “qualified trust 

beneficiary’s” request.9 Applying the reasoning of Childress, Richland was a beneficiary and no 

standing problem is apparent.

Costello argues that the March 3, 2021 order was improper because the proceedings in the 

probate court were void ab initio. He states that Richland had no standing in the first instance to 

bring the objection that began the case in the probate court and that the objection Richland made 

regarding the situs was an improper and ineffective commencement of proceedings. Even 

assuming we adopt the reasoning of the non-precedential unpublished opinion that proper 

jurisdiction was not invoked by way of Richland’s initial objection, there was an additional petition 

for removal of the trustee filed by Baker, an admitted primary beneficiary of the Trust. Baker 

 

9 MCL 700.7103(g) states:

“Qualified trust beneficiary” means a trust beneficiary to whom 1 or more 

of the following apply on the date the trust beneficiary’s qualification is 

determined:

(i) The trust beneficiary is a distributee or permissible distributee of trust 

income or principal.

(ii) The trust beneficiary would be a distributee or permissible distributee 

of trust income or principal if the interests of the distributees under the trust 

described in subparagraph (i) terminated on that date without causing the trust to 

terminate.

(iii) The trust beneficiary would be a distributee or permissible distributee 

of trust income or principal if the trust terminated on that date.
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properly set forth a basis for the court’s jurisdiction. Costello’s argument that the entire 

proceedings in the probate court must be declared a nullity at this point in time is without merit. 

If, upon remand in Docket No. 355947, the court entertains outstanding petitions, its order to 

provide Trust information would be valid.

Costello argues that the court should not have ordered that he turn over the form 706 

without also ordering that recipients keep the information contained in it confidential and only 

share it with necessary parties such as their professional advisors and lawyers. Again, MCL 

700.7814 refers to “reasonable request[s]” for information and providing information “[u]nless 

unreasonable under the circumstances.” It is apparent that requesting a tax form setting forth all 

trust assets is a reasonable request by a trust beneficiary. Both Costello and creditors of Eyde 

expressed concern that if the appraised values of assets in the Trust were disseminated, the price 

of bids for the sale of those assets could be depressed, because bidders would be unwilling to bid 

above the appraised values. Costello misconstrues his role. He sits as a trustee with duties that 

run to the beneficiaries, including Richland, Baker, Hildebrand, and Unis (i.e., four of the five 

beneficiaries). They are the ones standing to lose from any depression in prices—and they simply 

do not want a confidentiality provision. (As for the banks, they are not parties to the Trust or to 

this case.) It is true that Christopher has not expressed an opinion one way or another regarding 

the confidentiality provision. However, the confidentiality issue was entrusted to the trial court’s 

discretion. In PT Today, 270 Mich App at 151, this Court stated, “A trial court’s decision whether 

to grant a protective order limiting discovery is reviewed for an abuse of discretion.” Although 

the order at issue in the present case was not a discovery order10 but rather an order relating to 

providing information to beneficiaries of a trust, PT Today can be applied by analogy. And, 

significantly, Costello himself agrees that this issue should be reviewed for an abuse of discretion. 

The beneficiaries have every reason to protect their shares. Costello offers speculative argument 

that the absence of a nondisclosure provision would likely lead to a depression in property sales 

price. In this circumstance we cannot conclude that the trial court abused its discretion by ordering 

dissemination of the form 706 without also issuing a protective order. It is also worth noting that 

Christopher was present at the first hearing where disclosure of the form 706 was discussed and 

raised no objections.

Costello contends that it was wrong of the beneficiaries to ask for provision of the form 

706 from him because he held that form in his role as personal representative of Eyde’s estate, not 

as trustee of the Trust. This argument is not persuasive. The Trust concerns how to distribute 

Eyde’s assets after his death. Clearly, the form 706 is a relevant document for purposes of 

Costello’s fiduciary duties as trustee, and he possessed the form 706 in his capacity as both 

personal representative and trustee.

Costello also raises an unpreserved issue about exposure of Social Security numbers. He 

has established no outcome-determinative plain error, see People v Carines, 460 Mich 750, 763; 

597 NW2d 130 (1999), in connection with this issue because it has been clearly expressed that 

“the . . . beneficiaries” want Social Security numbers to be redacted. For example, Richland states

 

10 For this reason, we decline to delve into Costello’s various arguments about discovery rules.
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that “the Trust beneficiaries have no objection to, and, in fact, request that, Trustee redact all social 

security numbers appearing in Settlor’s federal estate tax return.”

11

In In re Pott, 234 Mich App 369, 375; 593 NW2d 685 (1999), this Court noted that 

disclosure of tax returns can be ordered for good cause. Costello explicitly states that he does not 

dispute this proposition about “good cause.” While it is true that there was a protective order in 

Pott, 234 Mich App at 372, the court in the present case, as discussed, did not abuse its discretion 

by failing to enter a protective order here.

Should the trial court conclude on remand that it is entertaining the outstanding petitions, 

then the order in Docket No. 356500 should be upheld.

Reversed in part and remanded for proceedings consistent with this opinion. We do not 

retain jurisdiction.

/s/ Colleen A. O’Brien

/s/ Cynthia Diane Stephens

/s/ Anica Letica

 

11 To the extent Costello may be attempting to argue for further redactions, his briefing is unclear. 

In fact, he states that “only a protective order—combined with redaction of the Trustee’s social 

security number—seems to proffer a workable solution.” In other words, his briefing seems to

indicate that he is not arguing for further redactions.