                            STATE OF MICHIGAN

                            COURT OF APPEALS



In re RINGER ESTATE.


MIRIAM ADAM, Personal Representative of the                         UNPUBLISHED
Estate of CLAUDE R. RINGER,                                         March 20, 2018

               Appellee,

v                                                                   No. 336884
                                                                    Ingham Probate Court
DEBORAH ELISSADEH,                                                  LC No. 16-000242-DE

               Appellant.


Before: SAWYER, P.J., and BORRELLO and SERVITTO, JJ.

PER CURIAM.


        Appellant, Deborah Elissadeh, appeals as of right an order granting summary disposition
in favor of Elissadeh’s sister, appellee and personal representative Miriam Adam, in an
inheritance dispute concerning Adam’s alleged undue influence over their mother, Claude
Ringer. The motion was granted pursuant to MCR 2.116(C)(10) (no genuine issue of material
fact) based on a determination that Elissadeh had not offered evidence countering the rebuttal of
a presumption of undue influence. We affirm.

                                            I. FACTS

       Claude Ringer died on January 9, 2016. Elissadeh objected to Ringer’s 2007 will and
2012 codicil, and petitioned the probate court for an order setting them aside, requesting that her
mother’s 2002 will be admitted to probate. Ringer’s 2002 will included gifts to both daughters,
each of Elissadeh’s three children, and a niece. Under the 2007 will and 2012 codicil, Elissadeh
was disinherited, and property that was to be given to Ringer’s niece was no longer part of any
bequest, leaving all of Ringer’s assets to Adam.

        Adam lives in Haslett, Michigan, and is a resident of Ingham County. Elissadeh moved
to Israel in 1980, married, moved to a kibbutz, and had three children. It is undisputed that
Ringer and her husband, Alexander, executed a joint last will and testament in 2002 when he
became ill with stage IV cancer. It provided that Adam and Elissadeh would take equally on

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their passing. A short time before Alexander’s death on May 3, 2002, Ringer moved in with
Adam, where she lived until her death.

       It is undisputed that after Alexander’s death, Adam became Ringer’s agent under a
“Financial power of attorney” and a “Health care power of attorney.” Adam testified that
beginning around 2003, Ringer relied on Adam for physical assistance, “[e]ither accompanying
her when she used the cane, holding her other arm, or using a wheelchair any time she had to
make a long walk.” Adam further testified that beginning in 1997, she helped Ringer with the
“reconciliation of accounts, bookkeeping, bill paying, and preparation of documents or
correspondence for Ringer to review, approve, and sign.”

        Elissadeh stated that her relationship with her mother became strained while she was
living in Israel, but that her parents were “generous” grandparents. She testified that while living
in Israel, and while Ringer was living with Adam, she attempted to make regular phone calls to
her mother, but was only able to leave messages on her mother’s voicemail system. Elissadeh
asserted that when she was able to talk to someone in Michigan, it was only to Adam, because
Adam was attempting to isolate her from their mother. Elissadeh offered no records of the
attempted phone calls or other evidence of her attempts to reach out to her mother. In contrast,
Adriana Espinosa, a homecare worker employed by Adam, testified that Ringer sat by her phone,
had access to it, and frequently answered her own calls.

        Elissadeh testified that, frustrated at being unable to reach her mother, she traveled from
Israel to the United States to see her. She testified that at 8:00 a.m. on February 27, 2004, she
showed up, unannounced, at Adam’s house. She further testified that Adam answered the door
and told her that the attorneys had said she could only see their mother on “neutral ground.”

        The parties disagreed about the circumstances surrounding police being called to Adam’s
home when Elissadeh arrived. Elissadeh alleged that Adam tried to “slam the door in her face”
when she knocked, and that Adam then called the police, who left after Ringer made it clear that
she did not intend to press charges against Elissadeh. Adam alleged that Ringer called the police
because she did not want to see Elissadeh. A police report dated February 27, 2004, contains the
transcription, “[c]aller rpts her sister is knocking on front door – will not leave.”

        While still in Michigan in 2004, Elissadeh presented Ringer with a document entitled
“Agreement to Settle Issues of Inheritance” in hopes of gaining access to a Swiss trust account
Elissadeh believed her father had left to her and her children before he died. The document was
a release of Ringer’s rights in the account such that it would pass outside of Ringer’s will to
Elissadeh. Adam testified that on February 27, 2004, Ringer met Elissadeh and signed the
agreement, releasing her rights to the Swiss trust account and leaving Elissadeh as its
beneficiary. Elissadeh testified that she transferred nearly $500,000 from the Swiss trust account
to an account she controls at a financial institution in Israel.

        Ringer’s attorney, Douglas Austin, testified that Adam initiated contact with him in 2005
regarding Ringer’s estate planning. He said that Adam was present during his initial meeting
with Ringer on June 1, 2005, but that it was his standard practice to meet with an estate planning
client alone, and that he met with Ringer one-on-one to discuss her will. Austin recalled that


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while meeting with her alone, she was able to walk on her own, respond to questions, and speak
intelligently.

       Both Adam and Austin testified that Ringer was unsettled by Elissadeh’s impromptu
2004 visit to Michigan and what Ringer thought amounted to a request for an early inheritance.
After the visit, Ringer amended the 2002 joint estate plan and disinherited Elissadeh. Austin
maintained that in 2005, Ringer could “articulate” why she wanted to disinherit Elissadeh.
Under her new will, Ringer left all of her assets to Adam except a gift of real estate to her niece.
In 2012, the codicil removed the gift to niece, effectively leaving all of Ringer’s assets and
property to Adam.

        Adam testified that Elissadeh’s request for early access to the Swiss account, so soon
after her father’s death, was a basis for Ringer disinheriting Elissadeh from her 2007 will.
Austin similarly testified that “. . . I just have an impression of [Ringer] being displeased with
[Elissadeh] and feeling, I think to some degree, betrayed by [Elissadeh] that she didn’t expect her
daughter, [Elissadeh], would do something like this.” Austin recalled that he memorialized
Ringer’s estate planning wishes with respect to Elissadeh’s disinheritance, stating “[A]s I
understand it, the mutual intention was for [Elissadeh] to have the Swiss assets and nothing
more.”

                                         II. ANALYSIS

        Appellant argues 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 and Ringer’s 2007 will and 2012 codicil. We disagree
        This Court reviews de novo the trial court’s decision on a motion for summary
disposition. Bill & Dena Brown Tr v Garcia, 312 Mich App 684, 692–93; 880 NW2d 269
(2015), citing Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion under
MCR 2.116(C)(10) tests the factual sufficiency of a claim and must be supported by affidavits,
depositions, admissions, or other documentary evidence, the substance or content of which
would be admissible at trial. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342
(2004). A trial court properly grants a motion brought under subrule (C)(10) when the submitted
evidence fails to establish any genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Bill & Dena Brown Tr, 312 Mich App at 698, citing In re Leix
Estate, 289 Mich App 574, 577; 797 NW2d 673 (2010).
        Respondent claims on appeal that there is a genuine issue of material fact concerning
whether the 2007 will and 2012 codicil of Ringer were the product of undue influence exerted by
Adam. We disagree.
        A mandatory presumption of undue influence is brought to life upon the introduction of
evidence which 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. Kar v Hogan, 399 Mich 529, 537; 251 NW2d 77 (1976).
        Once a presumption of undue influence is established, the party seeking to enforce the
will must offer other evidence to rebut the presumption. Kar, 399 Mich at 542. If the party
seeking to enforce the will proffers sufficient rebuttal evidence, the will challenger’s claim of
undue influence fails absent other evidence that “overcomes” rebuttal evidence. Id. Conversely,

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if the party seeking to enforce the will fails to offer sufficient evidence rebutting the established
presumption of undue influence, the challenger’s burden to show that undue influence occurred
is satisfied. Id.
         As our Supreme Court explained In re Karmey Estate, 468 Mich 68, 75; 658 NW2d796
(2003), quoting Kar, 399 Mich at 537, 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
         [her] inclination and free will. Motive, opportunity, or even ability to control, in
         the absence of affirmative evidence that it was exercised, are not sufficient.

Undue influence will only invalidate a will where a decedent’s free agency is overcome to the
extent that the will expresses 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 was capable of acting on her own motives and was free to make her own decision,
notwithstanding any external persuasion. Id. The burden of proving undue influence lies with
the person challenging a will. In re Estate of Peterson, 193 Mich App 257, 260; 483 NW2d 624
(1991), citing In re Mikeska Estate, 140 Mich App 116, 120-121; 362 NW2d 906 (1985).
        Here, it is undisputed that Adam was in a fiduciary relationship with Ringer that gave rise
to a legal presumption of undue influence. The burden of going forward with contrary evidence
thus shifted on to Adam and our issue becomes whether she sufficiently rebutted the presumption
of undue influence to the extent that no material question of fact remained on this issue.



        On this point, Austin’s testimony that Ringer understood her will, was clear in what she
wanted, and understood the effects of the 2007 changes, was coupled with undisputed evidence
offered by Ringer’s in-home caretaker and Adam regarding Ringer and Elissadeh’s strained
relationship. The 2007 will and 2012 codicil appeared to reflect Ringer’s volition in having a
will that reflected her wishes to disinherit all family members except Adam. The evidence
rebutted the presumption that Adam exerted undue influence over Ringer. The onus was thus on
Elissadeh to present some evidence to create an issue of fact regarding whether Adam
nonetheless exerted undue influence over Ringer. Elissadeh did not come forth with any
evidence that could give rise to such an issue of fact.

       Elissadeh argues that the trial court drew impermissible factual inferences, that she was
not required to produce additional factual evidence to overcome the rebuttal evidence, and that
the court drew improper conclusions about Austin’s and Elissadeh’s credibility. The probate
court, however, did not err by considering Espinosa’s and Austin’s testimony establishing
Ringer’s ability to exercise her free will. Had Elissadeh submitted any evidence to rebut their
testimony, a question of fact precluding summary disposition may have arisen. Elissadeh’s
contention that she did not have to produce additional evidence is incorrect. Kar, 399 Mich at
542 (if the party seeking to enforce the will proffers sufficient rebuttal evidence, the will
challenger’s claim of undue influence fails absent other evidence that overcomes rebuttal
evidence). Absent some evidence of undue influence in the face of the rebuttal of the
presumption, there was nothing to suggest that Ringer was unduly influenced or to create a
genuine issue of material fact on this issue. Although a trial court cannot make findings of fact

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or weigh credibility in deciding a motion for summary disposition, Peterson, 193 Mich App at
261, there is no indication that the court did so here. Elissadeh did not offer specific evidence to
give rise to a factual dispute about the rebuttal evidence advanced through Austin and Espinosa.
Because Elissadeh did not offer additional evidence to overcome the rebuttal evidence, the
probate court did not err in accepting Austin and Espinosa’s testimony as undisputed, and in
concluding that the presumption of undue influence was overcome and that no genuine issues of
material fact existed.

        Finally, Elissadeh contends that the probate court failed to give “adequate consideration”
to the presumption of undue influence. What she means by this argument is unclear. She
appears to argue that the presumption alone was sufficient to create a genuine issue of material
fact regarding whether there was undue influence. However, the ultimate burden rested with
Elissadeh. Once the presumption was rebutted it no longer stood as conclusive evidence, and in
the absence of any evidence submitted by Elissadeh, there was no genuine issue of material fact.

       Affirmed.

                                                             /s/ David H. Sawyer
                                                             /s/ Stephen L. Borrello
                                                             /s/ Deborah A. Servitto




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