Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  May 25, 2012                                                                    Robert P. Young, Jr.,
                                                                                            Chief Justice

  143307                                                                          Michael F. Cavanagh
                                                                                        Marilyn Kelly
                                                                                  Stephen J. Markman
                                                                                  Diane M. Hathaway
  _________________________________________                                           Mary Beth Kelly
                                                                                      Brian K. Zahra,
  In re Estate of ARNOLD E. MORTIMORE,                                                           Justices
  Deceased.
  _________________________________________
  RENEE HANNEMAN and DEAN
  MORTIMORE,
           Appellees,
  v                                                     SC: 143307
                                                        COA: 297280
                                                        Shiawassee CC: 09-034102-DA
  HELEN M. FISER,
            Appellant.

  _________________________________________/

         On order of the Court, leave to appeal having been granted and the briefs and oral
  arguments of the parties having been considered by the Court, we VACATE our order of
  October 26, 2011. The application for leave to appeal the May 17, 2011 judgment of the
  Court of Appeals is DENIED, because we are no longer persuaded that the question
  presented should be reviewed by this Court.

        YOUNG, C.J. (dissenting).

          We granted leave to appeal in this case to address the quantum of proof necessary
  to rebut a presumption of undue influence in a will contest. The majority today vacates
  that order granting leave to appeal, thereby leaving in place a decision of the Court of
  Appeals that erroneously concluded that there was a “mandatory presumption” of undue
  influence and that the proponent of the will bore the burden of overcoming it. Because
  this is not, and has never been, the law of this state, I dissent.

         I would reverse the Court of Appeals and clarify that the proponent of a will does
  not have to prove the absence of undue influence by a preponderance of the evidence in
  order to rebut a presumption of undue influence. Instead, consistently with well-
  established law providing that the burden of proof always remains with the contestant of
                                                                                           2

a will,1 the proponent need only introduce substantial evidence sufficient to create a
question of fact regarding undue influence, at which point the trier of fact weighs the
totality of the evidence and all permissible inferences therefrom to determine whether the
will was a product of undue influence. It is inconsistent and illogical to conclude that the
burden of proof rests with the contestant of a will, but then require the proponent of a
will to rebut a presumption of undue influence by a preponderance of the evidence—
which is the precise standard that satisfies a party’s ultimate burden of proof in a civil
case.

                                     I. BACKGROUND

        The doctrine of undue influence exists in the law of donative transfers as a tool to
protect susceptible individuals from improper influences that unduly alter a donor’s true
intent. A donative transfer is procured by undue influence if the wrongdoer exerted such
influence over the donor to overcome the donor’s free will and cause the donor to make a
transfer that the donor otherwise would not have made. 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 his inclination and free will.”2 However, not
all influence is undue, as this Court has explained:

                 “[I]nfluences to induce testamentary disposition may be specific and
         direct without becoming undue as it is not improper to advise, persuade,
         solicit, importune, entreat, implore, move hopes, fears, or prejudices or to
         make appeals to vanity, pride, sense of justice, obligations of duty, ties of
         friendship, affection, or kindred, sentiment of gratitude or to pity for
         distress and destitution, although such will would not have been made but
         for such influence, so long as the testator’s choice is his own and not that
         of another[.]”[3]

       Our caselaw provides that the burden of proof for establishing undue influence is
borne by the contestant of a will,4 and that burden does not shift, but remains with the
contestant throughout the entirety of the proceedings.5 This standard is in accord with
1
    See MCL 700.3407(c); In re Cooch Estate, 367 Mich 445, 451 (1962).
2
 Kar v Hogan, 399 Mich 529, 537 (1976); see also Nelson v Wiggins, 172 Mich 191,
199-200 (1912).
3
 In re Spillette Estate, 352 Mich 12, 18 (1958), quoting In re Jennings’ Estate, 335 Mich
241, 247-248 (1952) (emphasis added).
4
    Cooch Estate, 367 Mich at 451.
5
 See, e.g. Kar, 399 Mich at 538-539 (“The ultimate burden of proof in undue influence
cases does not shift; it remains with the plaintiff throughout the entire trial. . . . A
                                                                                          3

MCL 700.3407(1), which provides the burdens of proof applicable in contested estate
cases:

               All of the following apply in a contested case:

                                           * * *
               (c) A contestant of a will has the burden of establishing lack of
         testamentary intent or capacity, undue influence, fraud, duress, mistake, or
         revocation.

                (d) A party has the ultimate burden of persuasion as to a matter with
         respect to which the party has the initial burden of proof.

        Ordinarily, undue influence “is not to be presumed, but must be proved by the
person seeking to have the will declared invalid.”6 However, Michigan law recognizes
an initial presumption of undue influence applicable in situations in which the testator has
a confidential or fiduciary relationship with a person who receives a benefit under the
testator’s will.7 The presumption of undue influence is created upon the introduction of
evidence that would establish “(1) the existence of a confidential or fiduciary relationship
between the grantor and a fiduciary, (2) the fiduciary or an interest which he represents
benefits from a transaction, and (3) the fiduciary had an opportunity to influence the
grantor’s decision in that transaction.”8

         MRE 301 governs presumptions in civil actions; it provides:

                  In all civil actions and proceedings not otherwise provided for by
         statute or by these rules, a presumption imposes on the party against whom
         it is directed the burden of going forward with evidence to rebut or meet the
         presumption, but does not shift to such party the burden of proof in the
         sense of the risk of nonpersuasion, which remains throughout the trial upon
         the party on whom it was originally cast.


plaintiff has the burden of proof (risk of nonpersuasion) for all elements necessary to
establish the case. This burden never shifts during trial. Therefor, plaintiffs, who alleged
the existence of undue influence, bore the ultimate burden of persuading the trier of fact
that undue influence was used to procure the deed.”).
6
  In re Anderson Estate, 353 Mich 169, 172 (1958); see also In re Reed’s Estate, 273
Mich 334, 344 (1935) (“Undue influence cannot be presumed, but must be proved and in
connection with the will and not with other things.”).
7
    Pritchard v Hutton, 187 Mich 346, 358-359 (1915).
8
    Kar, 399 Mich at 537.
                                                                                         4

Thus, once a presumption is created, that presumption is a “procedural device which
regulates the burden of going forward with the evidence and is dissipated when
substantial evidence is submitted by the opponents to the presumption.”9 In the case of a
contested will, the presumption establishes a prima facie challenge to the will—thereby
protecting the challenge from dismissal—and requires the proponents of the will to
submit substantial evidence in rebuttal. However, as MRE 301 carefully notes,
presumptions do not shift the ultimate burden of persuasion.

       If the will’s proponent fails to produce sufficient rebuttal evidence, then the
presumption remains intact and establishes a mandatory inference of undue influence that
should be weighed by the fact-finder with the evidence generally to determine whether
undue influence in fact exists in the case. However, if rebutted, the presumption is
eliminated and the fact-finder must assess all the evidence to determine whether undue
influence has been proved by the will’s contestant.10 Because undue influence must not
be presumed, this Court has explained:

                 “It is now quite generally held by the courts that a rebuttable or
         prima facie presumption has no weight as evidence. It serves to establish a
         prima facie case, but if challenged by rebutting evidence, the presumption
         cannot be weighed against the evidence. Supporting evidence must be
         introduced, and it then becomes a question of weighing the actual evidence
         introduced, without giving any evidential force to the presumption
         itself.”[11]

Ultimately, whether the testator’s free will was overcome is still the crucial question for
the determination of undue influence, and that fact must be proved to, and resolved by,
the finder of fact.

                           II. ANALYSIS AND APPLICATION

      Applying these principles, I believe that the Court of Appeals erred in its analysis
and conclusions. The Court of Appeals held that, once established, there was a
“mandatory presumption” of undue influence that the proponent of the will bore the
burden of overcoming.12 The Court reasoned that because the probate court, sitting as

9
    Widmayer v Leonard, 422 Mich 280, 286 (1985) (emphasis added).
10
     See id. at 289.
11
  In re Cotcher’s Estate, 274 Mich 154, 159 (1936), quoting Gillett v Mich United
Traction Co, 205 Mich 410, 414 (1919).
12
   In re Mortimore Estate, unpublished opinion per curiam of the Court of Appeals,
issued May 17, 2011 (Docket No. 297280), p 1. First and foremost, Michigan law has
                                                                                         5

fact-finder, found that the evidence for and against undue influence was essentially
evenly split, the will’s proponent had not met her burden to disprove the presumption of
undue influence.

      By instituting a “mandatory presumption” of undue influence, the Court of
Appeals, in effect, shifted the ultimate burden of persuasion to Helen Fisher—the
proponent of the will. It is erroneous and illogical to state that the burden of proof
always remains with the contestant of a will, but then require the proponent of a will to
rebut a presumption of undue influence by a preponderance of the evidence. The
preponderance standard is the very same level of evidence that satisfies the ultimate
burden of proof in a civil case. I therefore cannot agree with the statement in Kar, upon
which the Court of Appeals primarily relied for its ultimate conclusion, that

      [i]f the trier of fact finds the evidence by the defendant as rebuttal to be
      equally opposed by the presumption, then the defendant has failed to
      discharge his duty of producing sufficient rebuttal evidence and the
      “mandatory inference” remains unscathed. This does not mean that the
      ultimate burden of proof has shifted from plaintiff to defendant, but rather
      that plaintiff may satisfy the burden of persuasion with the use of the
      presumption, which remains as substantive evidence, and that the plaintiff
      will always satisfy the burden of persuasion when the defendant fails to
      offer sufficient rebuttal evidence.[13]

Key to the analysis of this issue is that the burden of proof of undue influence always
rests on the contestant of the will. Because Kar states that the proponent of the will must
disprove the claim of undue influence by a preponderance of the evidence at the rebuttal
stage, how can it be said that this scheme has not shifted the burden of persuasion onto
the proponent? Although Kar disclaimed this conclusion—stating that “[t]his does not
mean that the ultimate burden of proof has shifted from plaintiff to defendant”—I am
unable to read Kar in any other way. This is particularly true where, as Kar provides, the
failure to rebut the presumption means that the contestant receives a mandatory inference
of undue influence that will “always satisfy” the burden of persuasion.

never recognized a “mandatory presumption” of undue influence. As discussed earlier,
when sufficient rebuttal evidence does not exist, at most the presumption of undue
influence becomes only a “mandatory inference” to be weighed with the other evidence
by the fact-finder. The use by the Court of Appeals of this unprecedented phrase only
serves to confuse further this complex area of the law.
13
   Kar, 399 Mich at 542 (emphasis added); see Mortimore Estate, unpub op at 6 (“The
trial court’s statements recognize that [defendant] presented evidence to rebut the
presumption of undue influence but when weighed against opposing evidence in favor of
the presumption, the trial court essentially found the evidence equally convincing. As
such, [defendant] did not overcome her duty to rebut the presumption.”).
                                                                                           6


        I believe that requiring evidence that equals the ultimate burden of proof at the
initial rebuttal stage sets too high of a bar for rebutting the presumption. To the extent
that Kar implies that a will’s proponent must rebut a presumption of undue influence by a
preponderance of the evidence, yet holds that this does not shift the ultimate burden of
persuasion, Kar is internally inconsistent and should be clarified. Moreover, Kar was
decided before the enactment of MRE 301 and MCL 700.3407,14 and its statements
regarding the quantum of proof necessary to rebut a presumption of undue influence are
inherently inconsistent with MRE 301 and MCL 700.3407, as well as caselaw of this
Court. At the very least, this Court ought to address the problem created by Kar because,
as this case illustrates, Kar is distorting the burden of proof in this important area of the
law.

       Instead, consistently with our caselaw, I would hold that where a presumption of
undue influence arises, a will’s proponent need only come forth with “substantial
evidence” in rebuttal.15 Ultimately, this standard requires that a proponent of the will
come forward with some objective evidence supporting the position that no undue
influence existed, but does not require that the proponent “prove” by a preponderance
that no undue influence existed.

        As even the proponent Helen Fisher concedes, I agree that this was an appropriate
case giving rise to the presumption of undue influence. However, I would hold that
Fisher offered sufficient evidence to rebut the presumption, thereby creating only a
permissible inference to be weighed with the evidence generally by the finder of fact.
Given that the probate court in this case found that the evidence was relatively evenly
split on the question of undue influence, I am perplexed how the Court of Appeals and a
majority of this Court could conclude that Fisher did not present sufficient evidence in
rebuttal to eliminate the initial presumption of undue influence.

       The trial judge, an experienced probate judge sitting as fact-finder in this case, was
well positioned to weigh all the evidence and understand the complexities presented in
this case. The probate court was certainly aware of the unusual facts and circumstances
that surrounded the creation of this will. Yet, the court admitted that it was perplexed




14
 Kar was decided by this Court on December 31, 1976; MRE 301 became effective on
March 1, 1978, while MCL 700.3407 became effective on April 1, 2000.
15
  See Widmayer, 422 Mich at 286 (providing that a presumption “is dissipated when
substantial evidence is submitted by the opponents to the presumption”).
                                                                                                               7

by this case, finding it to be an extraordinarily rare case in which the testimony by
witnesses was totally partisan and contradictory. The probate court noted that there was
very little overlap and that the evidence was essentially evenly split. Ultimately, the
probate court concluded clearly and unequivocally that “there [are] not sufficient grounds
to find undue influence under any of the conditions and standard[s] of the case law” and
that petitioners “did not prove undue influence.” I would not upset this conclusion on the
basis of an erroneous theory requiring the will’s proponent to demonstrate, by a
preponderance of the evidence, the nonexistence of undue influence.

        Accordingly, I would reverse the judgment of the Court of Appeals and reinstate
the trial court’s findings and conclusions of law. For all these reasons, I respectfully
dissent from this Court’s decision to deny leave to appeal, which thereby deprives us of
the opportunity to provide much needed clarity in the law governing the presumption of
undue influence.

      MARKMAN and MARY BETH KELLY, JJ., join the statement of YOUNG, C.J.




                         I, Corbin R. Davis, Clerk 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.
                         May 25, 2012                        _________________________________________
       t0522                                                                 Clerk
