Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  June 10, 2016                                                                   Robert P. Young, Jr.,
                                                                                             Chief Justice

  151299                                                                           Stephen J. Markman
                                                                                        Brian K. Zahra
                                                                                Bridget M. McCormack
  In re Estate of DOLORES C. SOLTYS                                                   David F. Viviano
  _________________________________________                                       Richard H. Bernstein
                                                                                        Joan L. Larsen,
                                                                                                  Justices
  DENNIS SOLTYS, SR., and MARLENE
  HARRIS,
            Plaintiffs-Appellees,
  v                                                     SC: 151299
                                                        COA: 311143
                                                        St. Clair PC: 2009-000587-CZ
  DAVID A. SCHMIDLIN, Personal Representative
  of the Estate of KATHLEEN SCHMIDLIN,
                 Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the February 24, 2015
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

        The stay of proceedings, ordered by the Court of Appeals on November 14, 2012,
  is DISSOLVED.

        ZAHRA, J. (dissenting).

         I would peremptorily reverse the judgment of the Court of Appeals and remand
  this case to the St. Clair County Probate Court for entry of a judgment in defendant’s
  favor because the lower courts improperly applied the statutory presumption of
  ownership in the survivor of joint accounts set forth in MCL 487.703.

         This case involves a dispute between siblings regarding the division of certain
  assets of their deceased mother’s estate. Leo and Dolores Soltys had three children,
  Kathleen Schmidlin, Marlene Harris, and Dennis Soltys. Leo and Dolores made
  Kathleen, defendant’s decedent, 1 a joint account holder on various financial accounts
  beginning in 1992, and she remained a joint account holder with Dolores after Leo’s
  death in 2004. When Dolores died in 2007, Kathleen claimed the accounts to the
  exclusion of Marlene and Dennis, later adding defendant as a joint account holder. In
  2009, Marlene and Dennis filed the instant lawsuit against Kathleen, seeking an equitable
  distribution of Dolores’s estate assets, including the funds in the joint accounts.
  Defendant responded by alleging that Dolores had intended to pass the joint accounts to



  1
    Kathleen died during these proceedings. Her estate, with her husband, David
  Schmidlin, as personal representative, was substituted as defendant.
                                                                                          2

Kathleen only, relying on MCL 487.703, which creates a statutory presumption of
ownership in the survivor of a joint account absent evidence of fraud or undue influence. 2

       After a bench trial, the probate court provided 17 factual findings in support of its
conclusion that the two siblings had rebutted the statutory presumption created by
MCL 487.703. The court thus ordered the joint accounts distributed equally among the
parties.

        Defendant appealed in the Court of Appeals. The panel found clear error in five of
the probate court’s findings of fact, but affirmed the court’s judgment in favor of
plaintiffs.3 Defendant filed an application for leave to appeal with this Court, and the
Court issued a peremptory order that remanded the case to the Court of Appeals for
application of the proper standard of review. 4 On remand, the Court of Appeals again
affirmed the probate court’s judgment for plaintiffs. 5 Defendant again seeks leave to
appeal in this Court.

        The presumption created by MCL 487.703 is one of ownership, and not intention. 6
This Court has made clear that the mere fact that a person placed funds in a joint account
is itself “cardinal” evidence that the depositor intended the funds to become jointly


2
    Joint accounts are governed by MCL 487.703, which provides in relevant part:

                When a deposit has been made . . . in the names of 2 or more
         persons, payable to either or the survivor or survivors, such deposit or any
         part thereof . . . made by any 1 of the said persons, shall become the
         property of such persons as joint tenants, . . . and may be paid to any 1 of
         said persons during the lifetime of said persons or to the survivor or
         survivors after the death of 1 of them . . . .

                The making of the deposit in such form shall, in the absence of fraud
         or undue influence, be prima facie evidence . . . of the intention of such
         depositors to vest title to such deposit and the additions thereto in such
         survivor or survivors.
3
  In re Soltys Estate, unpublished opinion per curiam of the Court of Appeals, issued
January 7, 2014 (Docket No. 311143).
4
    In re Soltys Estate, 497 Mich 908 (2014).
5
 In re Soltys Estate (On Remand), unpublished opinion per curiam of the Court of
Appeals, issued February 24, 2015 (Docket No. 311143).
6
    Jacques v Jacques, 352 Mich 127, 136-137 (1958).
                                                                                         3

owned by the account holders and pass to the survivor upon the other holder’s death. 7 In
order to rebut this cardinal evidence of the depositor’s intent, a party must present
“[r]easonably clear and persuasive proof” that the deposits were not intended to become
the property of the surviving account holder. 8

       On remand, the Court of Appeals identified the following facts as “pertinent” to its
conclusion that plaintiffs had provided reasonably clear and persuasive proof to rebut the
statutory presumption of MCL 487.703:

                 (1) Dennis and Marlene both testified that their parents always told
         them that all of the children would be treated equally; (2) the inclusion of
         Kathleen’s name on the accounts was initially done at a time when no
         disharmony existed in the family; (3) Dolores had indicated that she
         “trusted” Kathleen and, in conjunction with this statement, indicated that
         Leo had wanted joint accounts in order to avoid probate; (4) defendant
         testified that Kathleen had told Marlene that there would be an equitable
         distribution of Dolores’s property; (5) Kathleen had been less than
         forthcoming about the accounts, had lacked credibility in certain other
         respects, and had told Marlene that she “maybe” would get half of the real
         estate even though Kathleen “was a signatory to deeds conveying
         essentially all of Dolores’s real estate to herself and Marlene;” (6)
         defendant testified that he believed that Kathleen had not spent any money
         from the accounts “because it was Dolores’s money;” and (7) Kathleen
         made statements indicating hesitation regarding whether she was meant to
         receive all the money from the accounts.[9]

       These factual findings that the Court of Appeals relied on are either ambiguous or
irrelevant with respect to determining Dolores’s intent and, in my view, do not constitute
reasonably clear and persuasive proof that Dolores did not intend the joint accounts to
become the property of Kathleen only.

       As for factual finding (1), Dolores’s statement that all her children would be
treated equally does not necessarily indicate that she wanted her assets divided evenly,
especially because those statements did not specifically pertain to her intent in creating
the joint accounts. 10 While the lower courts relied on inferences and speculation from


7
    Id.at 137.
8
    Lau v Lau, 304 Mich 218, 224 (1943).
9
     Soltys Estate (On Remand), unpub op at 4.
10
    See Lau, 304 Mich at 221-223 (holding that the decedent’s statements during his
lifetime that his estate would be evenly divided among his four children were insufficient
                                                                                          4

Dolores’s statements, the fact that Dolores disinherited Dennis from her will shortly
before her death is direct evidence that she did not intend that her assets be divided
equally.

        As for factual finding (2), the absence or existence of family harmony at the time
the joint accounts were created is irrelevant in ascertaining Dolores’s intent, particularly
given that the accounts were maintained during times of both family harmony and
disharmony. What is relevant is the unambiguous testimony from Dolores’s attorney that
Dolores understood “how joint accounts worked.” Dolores thus understood that Kathleen
would be entitled to sole ownership of the accounts and did nothing to change this, even
in the periods of familial disharmony.

       As for factual finding (3), it is pure conjecture that Dolores’s statement that she
“trusted” Kathleen meant that she trusted Kathleen to divide the accounts equally. While
Leo may have stated that he did not want his estate probated, it is Dolores’s intent that is
relevant. In any event, a joint account is simply one way by which a party can avoid
probate. The record demonstrates that Dolores understood how the joint accounts would
operate upon her death. Dolores could have placed all three of her children on the
accounts and still avoided probate, but she chose not to do so. A desire to avoid probate
therefore says nothing at all about Dolores’s intention to distribute money to the other
two children.

        As for factual finding (4), whatever promises Kathleen might have made to
Marlene about the funds in the accounts in no way evidences Dolores’s intent about how
the joint accounts should be distributed.

       As for factual finding (5), Kathleen’s alleged lack of credibility or dishonesty
regarding the accounts is irrelevant to Dolores’s intent in creating the joint accounts,
especially given that any dishonesty or manipulation occurred after the accounts were
formed. Quite simply, even if Kathleen had been willing to subvert Dolores’s intent, that
willingness would not constitute evidence of Dolores’s intent when she placed only
Kathleen on the joint accounts.

      Finally, as for factual findings (6) and (7), Kathleen’s belief regarding to whom
the money belonged or hesitation in spending the funds in no way provides evidence of




to overcome the statutory presumption that ownership of the decedent’s joint accounts
went to the survivor).
                                                                                                               5

Dolores’s intent regarding any of her assets. 11 The Court of Appeals confused the
knowledge or actions of the survivor with the intent of the accounts’ creator.

        In sum, I conclude that the evidentiary record in this case in no way supports a
determination that reasonably clear and persuasive evidence was presented to overcome
the statutory presumption of ownership in the survivor. While the lower courts relied on
indirect assumptions and inferences regarding Dolores’s intent, the fact that Dolores
placed only Kathleen on the joint accounts is strong direct evidence of her intent that
Kathleen alone possesses the assets of those accounts, especially considering the
unambiguous testimony of Dolores’s attorney that Dolores understood how joint accounts
operate. The vague statements made by Dolores about wanting to divide her property
equally carry little weight, especially in light of her clear intent to disinherit Dennis by
writing him out of her will less than two months before her death. Plaintiffs insist that
Dolores intended to “treat” their children equally, but plaintiffs fail to appreciate that
“fair treatment” does not necessarily require an equal distribution of the joint accounts.

       By relying on speculative evidence to conclude that Dolores intended the accounts
to be shared equally, the lower courts failed to give proper deference to the presumption
created by MCL 487.703 and the evidentiary standard of reasonably clear and persuasive
proof. This is troubling, because if the statutory presumption in MCL 487.703 can be so
easily overcome, the presumption is rendered meaningless, erasing the security and
certainty of the rights of a surviving account holder. Indeed, the presumption would be
overcome in most disputes in which feuding siblings disagree about the intent of their
parents, even if the parents might have placed funds in joint accounts precisely to avoid
such disputes.

       For these reasons, I agree with defendant that plaintiffs did not provide reasonably
clear and persuasive proof to rebut the statutory presumption of ownership set forth in
MCL 487.703, and I would therefore peremptorily reverse the judgment of the Court of
Appeals and remand this case to the St. Clair County Probate Court for entry of a
judgment in favor of the defendant regarding these accounts.

       MARKMAN, J., joins the statement of ZAHRA, J.


11
  See Anderson v Lewis, 342 Mich 53, 60 (1955) (stating that a person’s mistaken belief
about her rights in the joint account before and after the death of the decedent “cannot
change the legal status of the joint account”).



                         I, Larry S. Royster, 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.
                         June 10, 2016
       p0607
                                                                             Clerk
