                         STATE OF MICHIGAN

                          COURT OF APPEALS



In re JOHN STIRLING WHITE TRUST.


JAMES WHITE, BRUCE WHITE, JEFF WHITE,                             UNPUBLISHED
and DOUG WHITE,                                                   September 13, 2018

              Petitioners-Appellants,

v                                                                 No. 338008
                                                                  Oakland Probate Court
DAVID WHITE and THOMAS BRENNAN                                    LC No. 2015-365903-TV
FRASER,

              Respondents-Appellees.


In re ESTATE OF JOHN STIRLING WHITE.


JAMES WHITE, BRUCE WHITE, JEFF WHITE,
and DOUG WHITE,

              Petitioners-Appellants,

v                                                                 No. 338009
                                                                  Oakland Probate Court
DAVID WHITE and THOMAS BRENNAN                                    LC No. 2014-360814-DA
FRASER,

              Respondents-Appellees.


Before: SWARTZLE, P.J., and JANSEN and O’BRIEN, JJ.

PER CURIAM.

      In Docket Nos. 338008 and 338009, petitioners, Jeff White, James White, Bruce White,
and Doug White, appeal as of right two orders granting summary disposition to respondents,
David White and Thomas Brennan Fraser, regarding the petitions filed by petitioners to set aside


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the will of their father, John Stirling White (Decedent), as well as the John Stirling White Trust.
We reverse and remand for further proceedings.

        This case arises from challenges by petitioners to Decedent’s amended will and trust,
which left a majority of Decedent’s estate to his oldest son, David. The Decedent’s original will
and trust, in 2004, devised Decedent’s estate in an equal fashion to all five sons. Decedent’s
assets were John Stirling White, LLC, which owned a commercial building in Farmington,
Michigan, called “the Winery,” and a manufactured home. Pursuant to the 2004 trust, the
Winery would be distributed equally to David, James, and Bruce, the three sons who managed
the Winery, the manufactured home would be distributed to David, and all other real and
personal property would be distributed equally between the five sons. In 2012, a contentious
divide grew between the family, with petitioners on one side, and Decedent and David on the
other. Eventually, Adult Protective Services filed a petition for conservatorship asserting that
Decedent was unable to properly manage his property and business affairs due to a mental
deficiency. In February 2013, following a hearing, the probate court denied the petition for
conservatorship and appointed David as co-trustee of the trust. Not too long thereafter, in March
2013, Decedent executed an amended will and trust (2013 Amendment). The 2013 Amendment
awarded 80% of Decedent’s estate to David, and petitioners were each awarded 5%.

        Decedent died on May 3, 2014. Following Decedent’s death, petitioners filed petitions to
set aside the 2013 Amendment based on undue influence and lack of testamentary capacity.
Respondents moved for summary disposition of the petitions on the ground that, despite
Decedent’s diagnosis in 2012 of mild cognitive impairment, he was able to satisfy the standard
for testamentary capacity at the time he decided to amend his estate plan and award most of the
estate to David. The probate court agreed with respondents that, despite the Decedent’s
impairment, the evidence offered supported a finding that he possessed testamentary capacity.
The probate court also granted summary disposition for respondents on petitioners claim of
undue influence, ruling that there was no genuine issue of material fact to support that theory,
MCR 2.116(C)(10). Specifically, the court ruled that petitioners did not produce any affirmative
evidence that David actually exercised undue influence. The court reasoned that David merely
had the opportunity to put false thoughts into Decedent’s head and that opportunity alone is not
sufficient to prove undue influence.

        The probate court also rejected applying the presumption of undue influence.
Specifically, the probate court found that there was no evidence of a fiduciary relationship
between Decedent and David at the time Decedent first expressed his desire to amend his estate
plan. The probate court found that the evidence showed that Decedent wanted to make the 2013
Amendment and award everything to David as early as April 2012. The probate court therefore
found that any confidential or fiduciary relationship between David and Decedent that was
established after this time was not indicative of undue influence. The probate found that denying
the motion for summary disposition would allow this case to proceed to the jury based only on
speculation.

        On appeal, petitioners argue that the probate court erred in granting summary disposition
under MCR 2.116(C)(10) based on the determination that no genuine issues of material fact
existed pertaining to undue influence of Decedent’s 2013 Amendment. We agree.


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        This Court reviews a motion for summary disposition de novo. Gorman v American
Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223 (2013). A motion for summary
disposition under MCR 2.116(C)(10) challenges the factual sufficiency of a plaintiff’s claim. Id.
at 115. The trial court considers the evidence in the light most favorable to the nonmoving party.
Id. Summary disposition is proper under MCR 2.116(C)(10) if “there is no genuine issue
regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id.
at 116 (citation and quotation marks omitted). There is a genuine issue of material fact “when
the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue
upon which reasonable minds might differ.” Id. (citation and quotation marks omitted). The
trial court in deciding the motion must view the substantively admissible evidence submitted up
to the time of the motion in a light most favorable to the party opposing the motion. Maiden v
Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999).

To establish direct evidence of undue influence:

       [It] must be shown that the grantor was subjected to threats, misrepresentation,
       undue flattery, fraud, or physical or moral coercion sufficient to overcome
       volition, destroy free agency and impel the grantor to act against his inclination
       and free will. Motive, opportunity, or even ability to control, in the absence of
       affirmative evidence that it was exercised, are not sufficient. [Kar, 399 Mich at
       537.]

A presumption of undue influence arises when there is evidence of (1) a confidential or fiduciary
relationship between the grantor and a fiduciary, (2) the fiduciary or an interest that he represents
benefits from a transaction, and (3) the fiduciary had an opportunity to influence the grantor’s
decision in that transaction. Kar v Hogan, 399 Mich 529, 537; 251 NW2d 77 (1976), overruled
on other grounds in In re Estate of Karmey, 468 Mich 68; 658 NW2d 796 (2003). Once the
presumption is established, the party wishing to enforce the trust or will must offer other
evidence to rebut the presumption. Id. at 542. If sufficient rebuttal evidence is offered, then the
challenging party’s claim of undue influence will fail unless other evidence exists that
“overcomes” the rebuttal evidence. Id. However, if the party seeking to enforce the will fails to
offer sufficient evidence rebutting the presumption of undue influence, then the challenger’s
burden to show that undue influence occurred is satisfied. Id. A trust or will is only invalidated
by undue influence when the decedent’s free agency was overcome to the extent that the will or
trust expressed the desires of someone other than the testator. In re Hannan’s Estate, 315 Mich
102, 123; 23 NW2d 222 (1946). The dispositive question is whether the decedent had the
capacity to act on his own motives, and was free to make his own decisions, notwithstanding any
persuasion from others. Id. The party challenging a trust or will has the burden of proving
undue influence. Bill & Dena Brown Trust v Garcia, 312 Mich App 684, 701; 880 NW2d 269
(2015).

        Petitioners argues on appeal that the probate court should have allowed the case to
proceed to a jury because the presumption of undue influence was established and a reasonable
juror could conclude that undue influence was exercised. Petitioners argue that the elements for
the presumption of undue influence were met because, at the time that Decedent executed the
2013 Amendment, David was Decedent’s primary caretaker and co-trustee of the trust, he stood
to benefit from the 2013 Amendment as he inherited a majority of decedent’s estate, and David

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had an opportunity to influence Decedent because he was heavily involved in Decedent’s daily
life.

        The probate court found that the presumption of undue influence did not exist. The
probate court’s reasoning hinges on the idea that Decedent had to be in a confidential or
fiduciary relationship with David at the time Decedent first expressed his desire to amend his
estate plan rather than at the time Decedent actually created the 2013 Amendment. However, to
give rise to a presumption of undue influence, the pertinent question is whether there was a
confidential or fiduciary relationship between David and Decedent at the time the 2013
Amendment was created. See Bill & Dena Brown Trust, 312 Mich App at 702 (finding no
presumption of undue influence because the confidential or fiduciary relationship existed after
the questioned documents were created rather than “at the time the questioned documents were
created”).

        Here, it is undisputed that David, as the co-trustee, was in a fiduciary relationship with
Decedent at the time the 2013 Amendment was executed.1 The evidence also showed that David
had the opportunity to influence Decedent’s decisions, as he was Decedent’s primary caretaker.
Finally, David’s inheritance of a majority of Decedent’s estate based on the 2013 Amendment
clearly meets the third requirement that he benefit from the transaction. Accordingly, the
petitioners met all of the elements to establish a presumption of undue influence.

        The probate court then proceeded to make the factual determination that even if the
presumption was established, petitioners failed to show any evidence of undue influence in the
face of respondents’ rebuttal evidence which permitted summary disposition. Generally,
“whether the presumption of undue influence is rebutted is a question to be resolved by the
finder of fact.” In re Peterson Estate, 193 Mich App 257, 261; 483 NW2d 652 (1992). Once
rebuttal evidence is introduced, the presumption, originally a mandatory inference, is reduced to
a permissible inference. Kar, 399 Mich at 548. Unless the rebuttal evidence meets the standard




1
  We find that David, as co-trustee, meets the definition of a “fiduciary relationship.” Fiduciary
relationship is defined as
       [a] relationship in which one person is under a duty to act for the benefit of the
       other on matters within the scope of the relationship. Fiduciary relationships--
       such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client--
       require the highest duty of care. Fiduciary relationships [usually] arise in one of
       four situations: (1) when one person places trust in the faithful integrity of
       another, who as a result gains superiority or influence over the first, (2) when one
       person assumes control and responsibility over another, (3) when one person has a
       duty to act for or give advice to another on matters falling within the scope of the
       relationship, or (4) when there is a specific relationship that has traditionally been
       recognized as involving fiduciary duties, as with a lawyer and a client or a
       stockbroker and a customer [In re Karmey, 468 Mich at 74 n 2 (citation omitted)].



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for a directed verdict2 i.e., “whether reasonable minds taking evidence in a light most favorable
to the nonmovant, could reach different conclusions regarding a material fact,” the presumption,
as a permissible inference, is sufficient to get the case before the jury. Bill & Dena Brown Trust,
312 Mich App at 703 Id. at 537 (citation and quotation marks omitted). It is well settled that a
trial court cannot make findings of fact or weigh credibility in deciding a motion for summary
disposition. Peterson, 193 Mich App at 261. Here, because the presumption existed, even if
respondents provided rebuttal evidence, there was a factual question that could only be resolved
at trial—whether the rebuttal evidence was sufficient in light of petitioners’ proffered evidence
establishing undue influence. Thus, it was inappropriate for the probate court to grant summary
disposition.

        The probate court seemingly determined that petitioners must provide direct evidence of
undue influence. However, as the Michigan Supreme Court has held, “[u]nquestionably undue
influence may be shown by indirect and circumstantial evidence, but it must be evidence of
probative force beyond mere suspicion . . . .” In re Langlois Estate, 361 Mich 646, 652; 106
NW2d 132 (1960) (citation and quotation marks omitted). “Undue influence may be insidious
and not in front of witness, but fair inferences can be drawn from the facts.” In re Persons
Estate, 346 Mich 517, 532; 78 NW2d 235 (1956) (citation and quotation marks omitted). “The
question of credibility is always one for the jury who may not accept all or any part of testimony
that they believe to be true.” Id.

        Here, there was an abundant amount of circumstantial evidence presented indicating that
the 2013 Amendment was the product of David exerting undue influence upon Decedent. For
example, Art Pisani, Decedent’s previous attorney, testified that when he met with Decedent and
David in July 2012, David did most of the talking and Decedent seemed confused. At this
meeting, Decedent asked Pisani about amending his estate plan to favor David. Pisani testified
that this raised a “red flag” because “it was totally inconsistent with what [Decedent] had set
forth in his 2004 will and trust.” Pisani then asked David to step outside so that he could speak
to Decedent alone, but David refused. Pisani ultimately refused to amend Decedent’s estate plan
because leaving everything to David was “so contrary” to everything Decedent had discussed
and done in the past. Further, Pisani testified that David was “certainly” influencing Decedent
and that he would not draft or amend a will if he felt the person was subject to undue influence.
Moreover, in the conservatorship proceeding, Dr. Swistak was appointed to examine Decedent’s
mental health. In November 2012, Dr. Swistak concluded that Decedent suffered from mild
cognitive impairment consistent with early-state dementia, which could be progressive; that he
was confused about his financial affairs; and that he “could be easily manipulated by family
members in this regard.” There was also testimony from Madelin White, Decedent’s ex-wife,
that evidenced that the 2013 Amendment was not the result of Decedent’s free will. In her
affidavit, Madelin stated that she knows Decedent “would never have voluntarily . . . amended
his will and trust to leave everything to David.” Madelin also stated that David threatened that




2
  “The standard applicable to directed verdicts is the same as that for a motion under MCR
2.116(C)(10).” Bill & Dena Brown Trust, 312 Mich App at 702 n 4.


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Madelin would be put in a nursing home if she did not side with David. There was also evidence
presented that showed that David isolated Decedent from other family members.

        The evidence of Decedent’s cognitive impairment and confusion, coupled with David’s
threats and isolating Decedent represent circumstantial evidence that the jury can consider to find
that the 2013 Amendment was the result of David’s undue influence rather than Decedent’s own
free will. Although several witnesses, including Amber Atkins, Decedent’s attorney at the time
of the conservatorship proceeding who helped Decedent execute the 2013 Amendment, testified
that Decedent did not appear to have been unduly influenced, when viewing the evidence in the
light most favorable to petitioners, reasonable minds could differ on whether David exercised an
undue influence over Decedent. Accordingly, the probate court erred in granting respondents’
motion for summary disposition.

       Reversed and remanded for further proceedings. We do not retain jurisdiction.



                                                            /s/ Brock A. Swartzle
                                                            /s/ Kathleen Jansen
                                                            /s/ Colleen A. O'Brien




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