            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



In re ESTATE OF ROBERT GERALD BOYK.


KATHLEEN MCFADDEN and CAROL                                       UNPUBLISHED
JANOWSKI,                                                         February 27, 2020

              Appellants,

v                                                                 No. 345915
                                                                  Wayne Probate Court
BARBARA BAKER,                                                    LC No. 2016-823193-DA

              Appellee.


Before: SHAPIRO, P.J., and JANSEN and M. J. KELLY, JJ.

PER CURIAM.

       This probate dispute between siblings arises out of the July 2016 death of their father,
Robert Gerald Boyk. Appellants Kathleen McFadden and Carol Janowski appeal as of right the
probate court’s opinion and order holding that they had failed to demonstrate that several
instruments executed by Boyk before his death—an April 28, 2014 “Lady Bird” deed1 and
several last wills executed in or after 2013—were the result of undue influence exerted by
appellee Barbara Baker. Because there are no errors warranting reversal, we affirm.




1
  “This type of quitclaim deed is named after President Lyndon Johnson’s wife, ‘Lady Bird,’
because President Johnson was thought to have once used this type of deed to convey some land
to her. A Lady Bird deed conveys an enhanced life estate that reserves to the grantor the rights
to sell, commit waste, and almost everything else.” Bill & Dena Brown Trust v Garcia, 312
Mich App 684, 687 n 2; 880 NW2d 269 (2015) (quotation marks, citations, and brackets
omitted).



                                              -1-
                                       I. BASIC FACTS

        After Boyk’s wife predeceased him in 2002, he lived alone in their multilevel home in
Dearborn Heights. In 2013, however, he asked appellee to live with him. She agreed, moving
into the home in August 2013. On appeal, appellants allege that in the years preceding Boyk’s
death, appellee unduly influenced him to execute the disputed instruments.

        All of the witnesses agreed that Boyk was a strong-minded, opinionated, “take-charge,”
religious man with a keen work ethic. McFadden’s daughter, Melissa, had been “very, very
close” with Boyk. Although it was a “very close knit family,” appellee did not have a good
relationship with her other siblings, and she admitted that she wanted no contact with them.
According to Melissa, shortly after appellee moved in with Boyk, appellee began “bashing” her
siblings by stating that they were “drug dealers,” had “picked on” her when she was younger,
and had been “partiers” and “gamblers.” Boyk was a teetotaler, disapproved of drug use
“completely,” and only tolerated gambling in moderation. Boyk seemingly began to believe
appellee’s allegations, and he repeated them. To Melissa’s knowledge, “immediately after
[appellee] moved in,” Boyk stopped calling and independently visiting family members, became
“very quiet and secretive,” and never went anywhere without appellee. Appellants offered
similar testimony concerning changes in Boyk’s behavior after appellee moved into his home.

        According to appellee, in October 2013, Boyk told her that he wanted to visit a lawyer
about some “personal business.” She did not question him about specifics, but went with him to
visit lawyer Peter Staver. Most of the meeting was private, but at one point, appellee was called
into the room to discuss a power-of-attorney designation. Ultimately, Boyk executed documents
nominating appellee as his patient advocate and attorney-in-fact with regard to finances.
Appellee denied using her financial powers as his attorney-in-fact.

        Staver confirmed that he met with Boyk and appellee in October 2013 because Boyk
wished to have Staver review his existing estate plan, including a quitclaim deed that Boyk and
his wife had previously executed with regard to their Dearborn Heights home. Staver believed
that he excused appellee from the room because he needed to meet with Boyk alone. Thereafter,
Staver explained to Boyk that the quitclaim deed had vested Janowski with a present property
interest, plus rights of survivorship, in the Dearborn Heights property. As a consequence, Staver
explained, that before Boyk could “do anything with that house,” he would need Janowski’s
“permission.” Boyk seemed “surprised” by this, but not upset. He asked Staver to prepare a
deed that would allow Boyk to dispose of the property however he saw fit. Ultimately, Staver
prepared and recorded such a deed. Staver also prepared a last will and testament for Boyk,
which named Janowski as personal representative of his estate, named appellee and one of
Boyk’s sons as successor personal representatives, afforded appellee a two-year life estate in the
Dearborn Heights property, and otherwise equally divided his estate between his children.

       According to Melissa, sometime in February 2014, she visited Boyk’s home and
discovered that a social worker from Adult Protective Services (APS) was there. Appellee was
“extremely angry” and believed it was Janowski who had filed the complaint with APS.
According to appellee, the visit from APS came two days after Boyk had a heated telephone
conversation with Janowski, which ended when “he told her she needed some psychological help
and hung up on her.” Boyk was “very upset” about the APS visit, and he was particularly angry

                                               -2-
with Janowski. Appellant McFadden also stated that she was accused of having made the APS
complaint. Thereafter, she did not visit Boyk’s home as often because, when she attempted to do
so, he and appellee would generally not answer the door. Around that time—in January 2014—
McFadden began to worry that appellee was exercising undue influence over Boyk. Yet,
McFadden also admitted that until “late December” 2015, Boyk seemed largely in control of his
faculties and “could do anything.” And appellee testified that throughout 2014 and 2015, Boyk
became increasingly “tired of” various family members, and he eventually instructed her to let
them know they were no longer welcome in his home.

       In March 2014, Boyk sold his home in Dearborn Heights and purchased another
multilevel home in Belleville. Melissa and Janowski found this perplexing, given that Boyk had
previously indicated that he wanted to “downsize” and live in a single-story home. According to
Melissa, appellee openly admitted that she had been the one to pick out the Belleville home, not
Boyk. In contrast, appellee testified that Boyk “always wanted a colonial” and had been the one
who selected the Belleville property. Appellee’s siblings did not visit “very often” after Boyk
moved, visiting “[m]aybe once a month[.]” Furthermore, there was testimony suggesting that
appellee changed Boyk’s phone number in order to thwart contact between him and her siblings.

        Staver met with Boyk a second time, alone, on March 4, 2014. Appellee admitted that
she drove Boyk to that appointment and waited for him in the lobby. Staver testified Boyk asked
him to prepare a new estate plan. Boyk stated that he wanted to bequeath his new home in
Belleville to appellee “absolutely,” that he wished to include a specific bequest of $15,000 to
Melissa, and that he wanted to leave the residue of his estate to appellee. This grabbed Staver’s
“attention” and struck him as “unusual,” because the change had the effect of disinheriting all of
Boyk’s other heirs. Accordingly, Staver spent “some length of time” asking Boyk “why he was
making a decision like that.” Boyk responded by listing each child, in order, and stating his
reasons as to that child. Boyk “had nothing derogatory or negative to say. But he had reasons
for what he was doing.” Staver could not recall all the stated reasons, but as a general
impression, Boyk had seemed to believe that the disinherited children were already financially
secure, whereas he believed that appellee was the least financially secure and did not have a
home of her own. Staver testified that Boyk “wanted to be sure she had a place to live.” Staver
encouraged Boyk to speak with all of his children about his wishes, suggesting that such a
conversation might make it easier for the disinherited siblings to accept his decision, but Boyk
declined. Indeed, after Staver pressed the matter, Boyk “became annoyed with” him, indicating
“that these were his assets” and, as such, he “didn’t need anybody’s permission to do whatever
he wanted to do with them.”

       At the meeting, Staver also took steps to assure himself that Boyk had testamentary
capacity and was under no undue influence. With regard to undue influence, it concerned Staver
that Boyk was living with appellee. But Staver’s overall impression, after questioning Boyk,
was that he was still seeing his other children, was “outgoing” and “socially active,” and was
frequently “out of the house.” Overall, Staver thought that Boyk did not appear “to be isolated in
any way” or “overly dependent.” Rather, “he was absolutely a strong-willed person,” having
always been the “bread winner” and a strong paternal figure in his household. Staver ultimately
dismissed his initial concerns regarding undue influence and prepared a will, which Boyk
executed on March 31, 2014. The March 31, 2014 will was more favorable to appellee than the
previous will.
                                               -3-
       Staver testified that Boyk returned to his office on April 16, 2014. Staver was certain that
he met with Boyk alone to discuss his wishes. He recalled that Boyk had wanted to make further
changes to his will and had requested a Lady Bird deed covering the Belleville property. Staver
prepared the requested deed and a revised will, and Boyk executed both on April 28, 2014. In
substance, the April 28, 2014 will was largely identical to the prior will. However, although
minor, the changes were again favorable to appellee.

        According to McFadden, in May 2014, she went to the Belleville home at Boyk’s
request, along with her children and husband. At one point, McFadden asked appellee if she
could carry a few bags of yard waste back to the garage. McFadden testified that appellee waited
until she and McFadden were alone, then said, “Do it yourself . . . . I got a gun and I ain’t afraid
to use it on you.” After McFadden’s husband heard about that threat, she was no longer
“allowed” to go to Boyk’s home unescorted. In addition, according to Janowski, in June 2014,
she witnessed appellee throw away mail that had been sent to Boyk.

        Staver testified that in November 2014, Boyk visited him one last time. They met alone.
Boyk asked Staver to prepare a revised will disinheriting Melissa and removing her nomination
as successor personal representative. Staver inquired as to Boyk’s motivations, and his best
“recollection” was that Boyk had “simply changed his mind.” Staver prepared a revised will that
was consistent with Boyk’s request, and Boyk executed it on November 11, 2014.

        Subsequently, on September 15, 2015, McFadden and her son, John, went to Boyk’s
house, planning to visit him because it was his 82nd birthday. Although appellee was home, she
refused to answer the door. Nevertheless, seeing Boyk inside, they entered the house. Boyk
became “all excited.” McFadden testified that Boyk told appellee, “they really do love me.”
McFadden stated that, standing behind Boyk, appellee gave her a “hateful” look. Later, Boyk
invited McFadden into another room to look at some furniture, and appellee said several things
about McFadden that made John angry. Eventually, appellee indicated that she had to go
perform an errand. McFadden said that she would stay with Boyk while appellee was gone.
Suddenly, appellee came “running” into the room and “grabbed” McFadden by the arms.
McFadden yelled, “[L]et go, don’t you ever put your hands on me.” Boyk came into the room
and told McFadden “to get the hell out of the house.” She agreed to leave, but appellee “kept
shoving [her] down the hallway.” Ultimately, appellee “threw” McFadden out of the home and
“shoved” John out the door. McFadden reported the incident to the police, and appellee was
arrested.

        Melissa testified that she spent the following two days—during which appellee remained
in jail—with Boyk. It was her first “one-on-one time” with him since appellee had moved in
with him in 2013. During that time, Boyk indicated that he did not “know where anything” was,
including his checkbook and the key to his mailbox. Melissa stated that he “was very upset”
with appellee and McFadden alike, stating that “this is ridiculous” and that the family had “to get
this in order.” At Melissa’s suggestion, he agreed that they should hold a videotaped family
meeting. Appellee initially agreed, but about eight hours after she was released from jail, she
called Melissa and cancelled, stating that Boyk no longer wanted to have the meeting. Appellee
also indicated that McFadden and her son were no longer permitted in Boyk’s house and that the
police would be summoned if they tried to enter.


                                                -4-
        In January 2016, Janowski filed two petitions seeking to be appointed as Boyk’s
conservator and full guardian. In a supporting affidavit, Janowski averred that appellee had
“effectively banned” all of Boyk’s other children. Janowski also indicated that she believed that
appellee might have been “exercising undue influence over [Boyk] and his finances.”

        As a result of the petitions, the probate court ordered that an independent evaluation of
Boyk be performed by a geronotologist, Dr. Marlana Geha. Dr. Geha performed that evaluation
at Boyk’s home on February 9, 2016, noting that appellee was present during the interview “at
[Boyk’s] request.” As part of the evaluation, Dr. Geha also interviewed Boyk’s children, his
physician, Staver, Janowski’s lawyer, and the lawyer who then represented Boyk. Dr. Geha also
reviewed the probate court file, the “Estate documents,” and Boyk’s medical records. In relevant
part, Dr. Geha reported to the probate court as follows:

       This Gerontologist found no particular problems with Mr. Boyk’s living
       arrangement. Mr. Boyk reported that he and his daughter are both on the property
       deed and that they share expenses . . .

               Robert Boyk presented as a well-developed, adequately-nourished, eighty-
       two year old, Caucasian male. Mr. Boyk was adequately dressed and groomed in
       clean, casual street clothes. Mr. Boyk reported that he was independent with
       respect to all of his personal activities of daily living . . . . Throughout the
       interview, Mr. Boyk presented speech that was clear, cogent, and topic oriented.
       It should be noted that Mr. Boyk reported that he was angry that he was being
       interviewed secondary to a Court order. He was very angry regarding the fact that
       the Petitions had been filed.

              Mr. Boyk reported he had few leisure activities. He stated he enjoyed
       going out to eat (almost every other day.) Mr. Boyk also reported he enjoyed car
       rides. Mr. Boyk stated he very much enjoyed painting . . . . Mr. Boyk showed
       this Gerontologist his collection of original art work that was on various floors of
       the house, including the basement.

                                             * * *

               [Appellee] convinced her father to see a physician. Mr. Boyk saw two
       physicians from the same office. Both doctors practiced under the University of
       Michigan Health System . . . . His diagnoses from these two visits included:
       Rheumatoid Arthritis, Hearing Impairment, Right Knee Pain, and Frailty. Mr.
       Boyk also has a history of Head Trauma from his time in the Army. Mr. Boyk
       was referred to a Rheumatologist . . . and went to the initial appointment. Mr.
       Boyk did not return . . . as he did not want to be treated with steroids . . . . Mr.
       Boyk was also referred to see an Audiologist regarding his hearing. At the time
       of this . . . interview with Mr. Boyk, he had obtained bilateral hearing aids . . . .
       As a result of a review of Mr. Boyk’s medical records . . . , no mention of
       Alzheimer’s Disease, Dementia, or other incapacitating conditions were
       mentioned [sic]. The records reflect that he was found to have “appropriate
       affect, alert, and oriented x 3.” It should be noted that Mr. Boyk went to the

                                               -5-
above mentioned doctors and obtained hearing aids under pressure secondary to
the Court date at hand. Dr. Richardson was acutely aware of Mr. Boyk being
“anti-doctor.” Dr. Richardson opined that Mr. Boyk was making good decisions
for what he wanted to treat. Dr. Richardson stated she witnessed no frank
evidence of Dementia. Dr. Richardson went on to add that Mr. Boyk perhaps
suffered from Depression or PTSD (Post Traumatic Stress Disorder.) No
medications for mood or memory were mentioned or prescribed.

                                       * * *

        When Mr. Boyk was questioned about his anger, he stated he was upset
about the Court proceedings and that he was very angry about the way his other
children were treating [appellee]. Mr. Boyk stated repeatedly throughout the
interview that he was frustrated about his adult children interfering in his life and
questioning his decisions. He went on to add that he felt he was being harassed
by his children . . . . This Gerontologist opines that Mr. Boyk’s long-term, recent,
and immediate memory functioning were within acceptable limits for his age.
Mr. Boyk stated he resented that his children questioned his decision making and,
therefore, wanted nothing to do with them.

                                       * * *

        Attorney Peter Staver was interviewed telephonically. Mr. Staver reported
that he had been the Attorney for the execution of two separate sets of estate
planning documents. The last estate planning documents were executed on
November 11, 2014. Mr. Staver reported that Mr. Boyk was competent and that
he had testamentary capacity when he drafted and executed his earlier Estate
documents. Mr. Staver reported that Mr. Boyk was also competent in November
of 2014, when he revised his estate plan. By way of interview with Mr. Boyk’s
various family members, it appears that they were apprised of Mr. Boyk’s
intention to revise his estate documents . . . .

                                       * * *

Mr. Boyk is very angry with many of his children for filing these Petitions before
the Court and for their alleged mistreatment of [appellee] . . . . It appears that Mr.
Boyk’s anger and his desire to have his daughter living with him are
consistencies. Mr. Boyk has severed ties with his children, which appears to be
his choice. Some of Mr. Boyk’s children alleged [appellee] is stopping her father
from having contact with them. [Appellee] denies these allegations. Mr. Boyk
states that he makes his own decisions. Family members have sent the local . . .
police to make an unannounced well check on their father. This . . . resulted in no
significant findings . . . . Mr. Boyk’s various family members wish to have a
relationship with him. There appears to be a social dilemma that cannot be
addressed by the Wayne County Probate Court. A family meeting is scheduled
for March 13, 2016, to further discuss these matters. Mr. Boyk has taken the
appropriate steps to avoid having either a Guardian or a Conservator.

                                         -6-
        In March 2016, Boyk, Janowski, and appellee entered a settlement agreement, under
which Janowski agreed to withdraw her petitions for a guardianship and conservatorship, and all
the parties agreed to entry of an order dismissing the guardianship and conservatorship actions
with prejudice. The settlement agreement indicated that Boyk “wishe[d] to have an ongoing
personal relationship with” his entire family.

        Boyk died on July 27, 2016, and the parties subsequently filed competing petitions to be
named personal representative of his estate. Appellants also filed a verified petition seeking to
recover estate assets, alleging that appellee had exercised undue influence on Boyk, which
eventually led him to execute the disputed instruments and to make inter vivos gifts to appellee
of both real and personal property. Appellants also challenged the Lady Bird deed, arguing that
it was the fruit of undue influence. The probate court conducted an evidentiary hearing during
which it took judicial notice of its files from the earlier guardianship and conservatorship
proceedings, including Dr. Geha’s report. After considering the matter, the probate court found
that appellants had failed to prove that the disputed instruments were the product of undue
influence by appellee. In addition, the court rejected appellants’ argument that appellee had a
confidential or fiduciary relationship with Boyk at the time he executed the disputed instruments.

                                         II. ANALYSIS

       Appellants argue that the trial court erred by disregarding the events occurring after Boyk
executed the disputed instruments. Appellants failed to preserve the evidentiary portion of this
issue by timely objecting below. See Nahshal v Fremont Ins Co, 324 Mich App 696, 709-710;
922 NW2d 662 (2018). Regardless, we exercise our discretion to review the issue. See Smith v
Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006) (citation omitted).

               [A] trial court’s decision whether to admit evidence is reviewed for an
       abuse of discretion, but preliminary legal determinations of admissibility are
       reviewed de novo. An abuse of discretion generally occurs only when the trial
       court’s decision is outside the range of reasonable and principled outcomes, but a
       court also necessarily abuses its discretion by admitting evidence that is
       inadmissible as a matter of law. [Nahshal, 324 Mich App at 710 (quotation marks
       and citations omitted).]

The probate court’s factual findings are reviewed for clear error, which exists when the
“reviewing court is left with a definite and firm conviction that a mistake has been made, even if
there is evidence to support the finding.” In re Conservatorship of Brody, 321 Mich App 332,
336; 909 NW2d 849 (2017) (quotation marks and citation omitted). This Court “will defer to the
probate court on matters of credibility, and will give broad deference to findings made by the
probate court because of its unique vantage point regarding witnesses, their testimony, and other
influencing factors not readily available to the reviewing court.” Id. (quotation marks and
citation omitted).

        Evidence of events occurring after Boyk executed the disputed instruments was relevant
to determine whether he executed those documents as a result of undue influence. See MRE 401
(stating that evidence is relevant if it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it would

                                                -7-
be without the evidence.”). “[I]n connection with other facts and circumstances,” “evidence
showing acts of undue influence at a date subsequent to the execution of” a disputed document
may, under the right circumstances, lead to a reasonable inference that that same undue influence
was also present when the document in question was executed. Leffingwell v Bettinghouse, 151
Mich 513, 518; 115 NW 731 (1908) (quotation marks and citation omitted). “The timeliness of
the evidence of undue influence bears on the weight of the evidence and not on its admissibility.”
McPeak v McPeak (On Remand), 233 Mich App 483, 496; 593 NW2d 180 (1999).

        Appellants fail to recognize, however, that the probate court neither excluded the
contested evidence as irrelevant nor held that such evidence merited no weight. Rather, the
probate court made two distinct observations concerning the events occurring after execution of
the disputed instruments. First, the probate court noted that evidence of a confidential or
fiduciary relationship between appellee and Boyk after he executed the disputed instruments
could not be used to retroactively establish a presumption of undue influence with regard to
those instruments. See Bill & Dena Brown Trust v Garcia, 312 Mich App 684, 702; 880 NW2d
269 (2015) (“the presumption of undue influence cannot be applied to questioned documents that
were created before the existence of a confidential or fiduciary relationship”) (quotation marks
and citation omitted). Second, the probate court found that because “the majority of the
incidents occurred after the [disputed instruments] were executed,” “the timeline of events . . .
does not support a finding of undue influence.” In other words, after weighing the evidence—
including evidence of events that took place after Boyk executed the disputed instruments—the
probate court found that appellants had failed to carry their burdens of proof and persuasion. We
find no error or clear error in those respects.

       Appellants next argue that the probate court clearly erred by taking judicial notice of Dr.
Geha’s report. Because appellants challenge an evidentiary ruling, this Court reviews the
probate court’s decision to take judicial notice of Dr. Geha’s report for an abuse of discretion.
See Nahshal, 324 Mich App at 710.

        Under the facts of this case, the trial court did not abuse its discretion by admitting the
evidence. It has long been settled that “a probate court takes judicial notice of its own files.” In
re Marxhausen’s Estate, 247 Mich 192, 199; 225 NW 632 (1929). Additionally, the contents of
Dr. Geha’s report were relevant to the question of undue influence. Dr. Geha related her
personal observations of Boyk during an interview performed in appellee’s presence, along with
Boyk’s comments about his relationship with his children. She also expressed expert opinions as
to Boyk’s mental, emotional, and physical state as of February 2016, which was more than a year
after Boyk executed the last of the disputed instruments. Thus, Dr. Geha’s report covered
several factors that were relevant to Boyk’s susceptibility to undue influence, which is a proper
consideration in cases such as this one. See In re Mikeska Estate, 140 Mich App 116, 122; 362
NW2d 906 (1985) (affirming a probate court’s finding that the testator “was not susceptible to
undue influence because of his stubborn nature, suspicion of his own children, and
argumentative nature”). See also In re Estate of Karmey, 468 Mich 68, 75 n 4; 658 NW2d 796
(2003) (“We do not exclude the possibility that, under facts other than those presented in this
particular case, a person might exercise undue influence over a weakened or vulnerable
spouse.”). Given the report’s relevance to the question of undue influence, the court did not
abuse its discretion by admitting and considering Dr. Geha’s report.


                                                -8-
        Finally, appellants argue that the probate court clearly erred by finding that they had
failed to present sufficient evidence to establish a presumption of undue influence. Appellants
further assert that the probate court clearly erred by holding that, even if appellants had
established a presumption of undue influence, they nevertheless failed to present sufficient
evidence of it to invalidate the disputed instruments. A probate court’s factual findings with
regard to allegations of undue influence are reviewed for clear error. In re Eriskson Estate, 202
Mich App 329, 331; 508 NW2d 181 (1993).

         Under MCL 700.3407(1)(c), “[a] contestant of a will has the burden of establishing . . .
undue influence[.]” Moreover, it has long been recognized that a party alleging undue influence
initially bears the burdens of both proof and persuasion, Kar v Hogan, 399 Mich 529, 539; 251
NW2d 77 (1976), holding limited in part on other grounds by Karmey, 468 Mich at 74, and proof
of “mere opportunity” to exert undue influence is insufficient to establish that such influence was
actually brought to bear, In re Jennings Estate, 335 Mich 241, 247; 55 NW2d 812 (1952). Still,
the contestant can create a rebuttable presumption of undue influence by introducing

       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. [Karmey, 468
       Mich at 73, quoting Kar, 399 Mich at 537.]

By establishing a rebuttable presumption of undue influence, the contestant creates a question of
fact for the trier of fact. See Bill & Dena Brown Trust, 312 Mich App at 701.

        On appeal, appellants contend there was a fiduciary relationship between Boyk and
appellee based on appellee’s admission that Boyk executed a power of attorney naming appellee
his attorney-in-fact with regard to finances, and because appellee was appointed as Boyk’s
patient advocate under a medical power of attorney. As a matter of law, “an attorney in fact
acting under the authority of a general power of attorney is in a fiduciary relationship with the
principal,” bound by the same fiduciary obligations that are incumbent upon any agent. In re
Susser Estate, 254 Mich App 232, 235; 657 NW2d 147 (2002). Here, however, while there was
testimony that Boyk had executed a power of attorney naming appellee as his attorney-in-fact
with regard to finances, appellants presented no evidence regarding the duration and nature of
that power of attorney, nor did they present evidence as to whether it was operative immediately
or only upon the satisfaction of some condition, such as Boyk’s disability. Moreover, the
probate court accepted appellee’s testimony that she had never actually acted as Boyk attorney-
in-fact, and we will not disturb the probate court’s credibility determination. In addition,
although appellee admitted that she had been appointed as Boyk’s patient advocate under a
“medical power of attorney,” there is no evidence indicating that she was acting in that capacity
when Boyk executed the disputed instruments. Accordingly, we are unpersuaded by appellant’s
argument that a fiduciary relationship existed as a matter of law.

        That is not to suggest, of course, that there was no evidence tending to support a finding
that a confidential or fiduciary relationship existed outside of the fiduciary relationships strictly
defined by law. “[W]hether there exists a confidential relationship apart from a well defined
fiduciary category is a question of fact.” Alpha Capital Mgt, Inc v Rentenbach, 287 Mich App

                                                -9-
589, 602; 792 NW2d 344 (2010) (quotation marks and citation omitted). The phrase
“confidential or fiduciary relationship” is “broad,” Karmey, 468 Mich at 74 n 3, “embrac[ing]
both technical and fiduciary relations, and those informal relations which exist whenever one
[person] trusts in and relies upon another,” Van’t Hof v Jemison, 291 Mich 385, 393; 289 NW
186 (1939) (quotation marks and citation omitted). The breadth of the phrase’s meaning is
tempered, however, by the fact that it “has a focused view toward relationships of inequality,”
such as when “complete trust has been placed by one party in the hands of another who has the
relevant knowledge, resources, power, or moral authority to control the subject matter at issue.”
Karmey, 468 Mich at 74 n 3 (quotation marks and citation omitted). “One should not lose sight
of the basic principles underlying the concept of undue influence.” Id. at 75.

        Here, the evidence suggests that Boyk placed a significant amount of trust in appellee at
various times, placing her on his bank accounts, allowing her to handle financial matters for him,
and naming her as his patient advocate. But such familial trust on Boyk’s behalf is insufficient,
standing alone, to find the existence of a confidential or fiduciary relationship. See id. at 75-76
& n 3 (holding that although marriage “is a unique relationship based on mutual trust and
commitment,” it does not qualify as a “confidential or fiduciary relationship” for purposes of the
presumption of undue influence). See also Salvner, 349 Mich at 384 (finding insufficient
evidence of a fiduciary relationship between a deceased father and his adult children—who had
lived with him for years before his death, assisting him in his old age and disability—because it
was “perfectly natural” for the children to assist their father under such circumstances, any
“influence” from such laudable conduct had not been “undue,” and it had not been established
that the father had been “governed by their advice or that he depended on them in the making of
decisions concerning his business affairs, or otherwise”). Stated differently, “the mere assisting
with and conducting of testator’s business affairs does not give rise to a fiduciary relationship[.]”
Id. (quotation marks and citation omitted). Rather, such a relationship “exists only when there is
a reposing of faith, confidence and trust and the placing of reliance by one upon the judgment
and advice of another.” Id. at 384-385 (quotation marks and citation omitted).

        Although there is ample evidence suggesting that Boyk placed his faith, confidence, and
trust in appellee, there is no basis to disturb the probate court’s finding that appellants failed to
demonstrate that Boyk was also reliant on her for judgment or advice. This is particularly true
given that the probate court had the opportunity to personally observe Boyk during the
guardianship and conservatorship proceedings, which occurred after he had executed the
disputed instruments. Moreover, there was significant evidence that Boyk was a strong-willed,
independent individual throughout the majority of his life, and that he retained those
characteristics well after he executed the disputed instruments. Further, Staver’s testimony
indicated that Boyk was concerned that appellee would not be able to provide for herself after his
death, which strongly suggests that he would not have relied on or been influenced by her advice
or counsel about financial matters. In light of such evidence, we are not definitely and firmly
convinced that the probate court made a mistake when it found that appellants had failed to
demonstrate that—before Boyk executed the disputed instruments—he had a confidential or
fiduciary relationship with appellee.

       For similar reasons, we perceive no clear error in the probate court’s finding that even if
appellants had satisfied all of the necessary elements to yield a presumption of undue influence,
they nevertheless failed to meet their burden of persuasion. If a rebuttable presumption of undue
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influence had arisen, appellants would have nevertheless borne “the burden of going forward
with evidence that the transaction was free of undue influence.” See Kar, 399 Mich at 542. As
explained in Kar, 399 Mich at 542:

       If 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.

         Appellee produced evidence rebutting any presumption of undue influence. Specifically,
she presented evidence that Boyk remained a strong-willed, independent individual well after he
executed the disputed instruments, that he met with Staver alone to discuss his wishes, and that
he provided cogent reasons for his estate plan, i.e., wishing to provide for appellee in the belief
that she needed such help and the others did not. Again, paying deference to the probate court’s
superior fact-finding capabilities, its opportunity to judge the credibility of the witnesses, and its
ability to personally observe Boyk’s in-court demeanor during the guardianship proceedings, we
find no basis to disturb the court’s findings. “Undue influence, such as will invalidate a will,
must be something which destroys the free agency of the testator at the time when the instrument
is made, and which, in effect, substitutes the will of another for that of the testator.” In re
Williams Estate, 185 Mich 97, 120; 151 NW 731 (1915) (quotation marks and citation omitted).
On this record, we cannot conclude that the probate court clearly erred by finding that appellee
had rebutted any presumption of undue influence and that appellants had failed to prove, by a
preponderance of the evidence, that appellee’s influence over Boyk at the time he executed the
disputed instruments was so strong as to destroy his free agency.

       Affirmed. Appellee may tax costs as the prevailing party. MCR 7.219(A).

                                                              /s/ Douglas B. Shapiro
                                                              /s/ Kathleen Jansen
                                                              /s/ Michael J. Kelly




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