                            STATE OF MICHIGAN

                            COURT OF APPEALS



In re Estate of GERALD R. MAHONEY TRUST &
NANCY W. MAHONEY TRUST.


KIM JONES,                                                           UNPUBLISHED
                                                                     August 20, 2015
               Appellant,

v                                                                    No. 320074
                                                                     Charlevoix Probate Court
KEITH MAHONEY and NANCY W.                                           LC No. 11-011713-TV
MAHONEY as Co-Trustees of the Nancy W.
Mahoney Trust,

               Appellee.


Before: GLEICHER, P.J., and K. F. KELLY and SERVITTO, JJ.

K. F. KELLY, J. (concurring in part and dissenting in part).

       I agree with the majority in all respects except for its conclusion that Kim raised a
colorable claim that she had probable cause to challenge the amendments due to undue influence.

        Even assuming that Keith and Nancy shared a fiduciary relationship, I would
nevertheless conclude that there was no justification for Kim to assert a claim of undue
influence. There is no indication that Keith benefited from the amendments. Kim maintains that
Keith benefited because “[i]nstead of being a successor co-trustee of his mother’s Trust with his
sisters pursuant to the terms of the First Amendment to Nancy’s Trust, he became the co-trustee
of Nancy’s Trust with Nancy and sole successor trustee, allowing him much more freedom in
administering the Trust,” including having “total control of the distribution process.” However,
appointment of a fiduciary as executor of the will, or as a trustee of a limited testamentary trust,
would not alone establish the kind of benefit necessary to raise a presumption of undue
influence. In re Gerald L Pollack Trust, 309 Mich App 125; ____ NW2d ____ (Docket Nos.
309796, 318883, 310844, 310846, issued January 29, 2015), slip op p 14; In re Vollbrecht
Estate, 26 Mich App 430, 436; 182 NW2d 609 (1970). Therefore Kim’s claim of this benefit is
insufficient to trigger the presumption.

        Nor did Keith “benefit” because he could now have his pick of the lakefront lots. The
trial court properly concluded that the values of the parcels were to be equalized. From a strictly

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financial standpoint, any monetary difference in the value of the lots was to be equalized so that
no sibling would benefit more than the others.

        Nor was there support for Kim’s contention that Keith influenced Nancy to act against
her inclination and free will. Keith had multiple conversations with Nancy about her estate plans
but Kim was well aware that Nancy had retained an attorney. As the trial court pointed out,
“Keith’s role was ministerial in nature, his involvement was requested by Nancy, and Mr.
Shotwell directed his substantive communications with Nancy . . .” Kim complains that this
was using the benefit of hindsight, but I believe that Kim’s claims of undue influence were
specious, at best. I agree with the trial court’s ultimate conclusion:

                Underpinning Kim's suit was her disappointment that her wishes were not
       fulfilled. Given the fact that Nancy adopted a plan for the Lake property
       consistent with prior generations and a plan that did not disadvantage Kim this
       suit can only be seen as Kim wanting to get her way. This is particularly true
       given the standards for testamentary capacity. The desire to discourage suits of
       this type is the genesis of the in terrorem clause and requires its enforcement in
       this case.

       I would affirm the judgment in its entirety.

                                                            /s/ Kirsten Frank Kelly




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