                            STATE OF MICHIGAN

                              COURT OF APPEALS



In re ESTATE OF JOSEPHINE M. MICHAEL.


MAROUN J. HAKIM as Personal Representative                         UNPUBLISHED
of the ESTATE OF JOSEPHINE M. MICHAEL,                             August 9, 2018
and COMERICA BANK,


               Petitioners,
and

CHARLES MICHAEL,

               Appellee,

v                                                                  No. 337161
                                                                   Macomb Probate Court
RICHARD MICHAEL,                                                   LC No. 2015-215342-DA

               Appellant.


Before: FORT HOOD, P.J., and SERVITTO and BECKERING, JJ.

PER CURIAM.

        Appellant, Richard Michael, appeals as of right the probate court’s determination that his
mother, Josephine Michael, was unduly influenced by him, in executing a September 8, 2010
will devising her home to him to the exclusion of her other children and the probate court’s
order setting aside that will. We affirm.

        Josephine Michael (“Josephine”) passed away on January 6, 2015, at the age of 98. She
had four adult sons. On January 12, 2015, attorney Maroun Hakim filed letters of authority as
personal representative for her estate and requested informal probate of a will executed by
Josephine on September 8, 2010. The September 8, 2010 will devised her home, which
constituted the majority of her estate, solely to her son Richard Michael (“Rickey”) who had
resided with Josephine the majority of time from 2010 until her death. Josephine’s prior wills
had devised her estate equally among Rickey and her three other sons.



                                               -1-
        One of Josephine’s sons, Charles Michael (“Charles”), petitioned to set aside the informal
probating of the will, asserting that he was contesting the validity of the September 8, 2010 will
based upon duress, coercion and undue influence exercised by Rickey over Josephine. The
matter proceeded to a bench trial, at the conclusion of which the probate court found that the
September 8, 2010 will was procured through the undue influence of Rickey. The probate court
thus set aside the September 8, 2010 will. Rickey now appeals that determination, arguing that
the evidence presented at the bench trial was insufficient to establish that he controlled or
overcame his mother to the point of forcing her to abide by his will.

       “Following a bench trial, we review for clear error the trial court's factual findings and
review de novo its conclusions of law.” Ligon v City of Detroit, 276 Mich App 120, 124; 739
NW2d 900 (2007). “The clear error standard provides that factual findings are clearly erroneous
where there is no evidentiary support for them or where there is supporting evidence but the
reviewing court is nevertheless left with a definite and firm conviction that the trial court made a
mistake.” Hill v City of Warren, 276 Mich App 299, 308; 740 NW2d 706 (2007).

        The right to contest a will is statutory and a “contestant of a will has the burden of
establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or
revocation.” MCL 700.3407(1)(c). “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 his inclination and free will.” In re Estate of Karmey, 468 Mich 68, 75; 658 NW2d 796
(2003) (quoting Kar v Hogan, 399 Mich 529, 537; 251 NW2d 77 (1976)). There must be proof
of actual acts of the type illustrated above to establish undue influence; “motive, opportunity, or
even ability to control, in the absence of affirmative evidence that it was exercised, are not
sufficient.” Id. To be classed as “undue influence” the influence must place the testator in the
attitude of saying: “It is not my will but I must do it.” In re Jackson's Estate, 220 Mich 565,
574; 190 NW 762 (1922).

        In some instances, undue influence is presumed. A presumption of undue influence is
created by the introduction of evidence that establishes “(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, 399 Mich at 537. Even when this presumption is
established, the ultimate burden of proving undue influence remains on the party alleging that it
occurred. Id. at 538. What the presumption does is satisfy the burden of persuasion, so if a party
opposing the allegation of undue influence “fails to offer sufficient rebuttal evidence,” then the
party alleging undue influence will have met its burden of showing the occurrence
of undue influence. Id. at 542. The trier of fact must resolve whether sufficient evidence has
been presented to rebut a presumption of undue influence. In re Peterson Estate, 193 Mich App
257, 262; 483 NW2d 624 (1992). 1 “The reviewing court will defer to the probate court on



1
  Although not addressed by the trial court, as an alternative reason to affirm we would find that
all of the factors necessary to establish a presumption of undue influence have been met, Kar,


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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.” In re Erickson Estate, 202 Mich App 329,
331; 508 NW2d 181 (1993); see also MCR 2.613(C).

        In this matter, there was an abundance of evidence indicating that Rickey exercised
control over Josephine and subjected her to threats, misrepresentation, and coercion sufficient to
overpower her volition and impel Josephine to act against her inclination and free will in signing
the September 8, 2010 will. Karmey, 468 Mich at 75. First, several witnesses testified that
Rickey would frequently yell at his mother and would often tell her that he was the only one who
loved her, that she loved the other sons and her niece more than she loved him, that everyone
else would put her in a nursing home, or that he would put her in a nursing home.

        Judy Hicks (“Hicks”), employed as a caregiver for Josephine in 2009-2010, testified that
during the time she cared for Josephine, Rickey would often argue with his mother and would
ask other family members to leave when they came to visit Josephine. Hicks further testified
that she often heard Rickey tell Josephine that he was the only one that would take care of her
and that everyone else would put her in a home. Hicks detailed a day, September 9, 2010, when
Josephine was crying, which was highly unusual. According to Hicks, Josephine told her that
Rickey had tricked her into signing her house over to him and that Rickey told her if she did not
sign a new will he would not take care of her anymore. Hicks testified that Josephine feared
going into a nursing home facility.

        Rodney Michael (“Rodney”), one of Josephine’s sons, testified that he saw several
arguments between Rickey and their mother and, on one occasion, saw Rickey scream at their
mother that he was the only one who loved her. On one occasion, when Rickey wanted Rodney
to leave the house and he refused, Rickey put his head in Josephine’s lap crying and telling her
that she loved Rodney more. Rodney testified that on another occasion (he could not recall the
year) Josephine called him upset about something Rickey made her do. Josephine told Rodney
that instead of taking her to eat, Rickey had taken her to attorney Hakim’s office. Josephine said
she thought Rickey was going to put her in a nursing home and Rodney would not find her.

       George Michael (“George”), another of Josephine’s sons, testified that Rickey and their
mother frequently argued and that Josephine kicked Rickey out of her house several times.
George saw many arguments between Rickey and their mother and heard Rickey tell their
mother on several occasions that he was the only one that would take care of her and that the
other boys would just put her in a nursing home.

       Anita Abdoo, Josephine’s niece and neighbor, testified that Josephine was like a mother
to her and that she saw Josephine daily except during a three-year period when Abdoo lived
elsewhere, when she saw Josephine two to three times a week. Abdoo testified that Rickey



399 Mich at 537, and that Rickey failed to offer sufficient rebuttal evidence such that Charles
met his burden of showing undue influence. Id. at 542.


                                               -3-
would yell at Josephine and tell her that the other brothers would put her in a nursing home,
which terrified Josephine.

        Dolores Eggen, Josephine’s 80-year-old niece, testified that she spoke to Josephine daily
and saw her every Sunday in church. Eggen testified that around 2010 Josephine was crying and
told Eggen that she signed some papers because she was fearful that Rickey was going to put her
in a nursing home.

        Cynthia Keener, Josephine’s niece and neighbor from 2006-2013, testified that she saw
Josephine a couple of times per week. She testified that there was a lot of fighting between
Rickey and Josephine and that she heard Rickey tell Josephine that his brothers were trying to
put her in a nursing home, that they did not love her, and that Rickey was the only one who loved
her.

       Charles Michael (“Charles”), the fourth of Josephine’s sons, testified that his mother
expressed fear of Rickey putting her into a nursing home. While Charles was on the phone with
their mother on one occasion, he heard Rickey tell her that if he was not in the home, his brothers
would put her in a nursing home and she was lucky Rickey was there to care for her. On another
occasion while on the phone with their mother, Charles heard Rickey yelling at their mother that
he (Rickey) was going to put her in a nursing home.

         From the above, it is clear that Josephine and Rickey had a contentious and emotional
relationship. Rickey engaged in considerable emotional manipulation of Josephine by
alternatively intimidating her through yelling and threatening to put her in a nursing home, and
then wheedling her into letting him have his way by telling her he was the only one who loved
her and would keep her out of a nursing home. The testimony establishes that he used these
threats and manipulation to get Josephine to sign the September 8, 2010 will. Though Rickey
testified that he did not yell at his mother and that Hicks, Abdoo, Rodney and Keener were all
lying when they said otherwise, the probate court obviously found these witnesses to be more
credible. We will not interfere with the trier of fact's role in determining the credibility of the
witnesses. People v Williams, 268 Mich App 416, 419; 707 NW2d 624 (2005).

        Second, Rickey isolated and controlled Josephine and caused her to distrust others.
Rodney testified that for a period several years prior to Josephine’s death, every time Rodney
would go to visit his mother, Rickey would tell him to leave or call the police. Rodney testified
that Rickey threatened him with a gun when he came to see Josephine in 2010 or 2012. He had a
gun in his hand and told Rodney he couldn’t be there and that he would kill him.

       Abdoo testified that Rickey would yell at Josephine until she did not want to go
anywhere. Abdoo would be on the phone with Josephine and she could hear Rickey asking who
she was talking to and demanding she get off the phone. Rickey would also call when Abdoo
was at Josephine’s house and tell her to make Abdoo leave. Rickey eventually moved the
phones in the house so that they were not near Josephine anymore when she was not able to get
up on her own easily to go get the phone. In addition, according to Abdoo, Rickey did not go to
family functions and did not want Josephine to go either, demanding that others bring her home
from events when he called.


                                                -4-
        Eggen testified that Rickey tried to control who Josephine could see and that Josephine
told her that Rickey bossed Josephine around. Keener testified that she was not allowed to be at
Josephine’s house a lot of times when Rickey was there. She further testified that Rickey would
get angry and yell or cuss at Josephine for wanting to go out with Charles or Abdoo.

         Charles testified that Rickey wanted to control Josephine. Rickey began arguing with
Charles when he came in the evenings to visit Josephine and he told Charles to come during the
day, while Rickey was at work. Charles, thereafter, couldn’t come as often because he worked
during the day as well. If Rickey called when he was visiting Josephine, Charles could hear
Rickey tell their mother that Charles better not be there when he got home. Rickey would often
throw Josephine’s visitors, who consisted primarily of family, out of the home. George similarly
testified that Rickey tried to control who came to Josephine’s house and stopped their cousin,
Abdoo, and others from coming to see Josephine.

        As for causing Josephine to distrust others, in late 2009 and early 2010, Rodney
transferred money between Josephine’s accounts in order to pay caregiver and other expenses for
her. Without investigating or speaking to his brother, Rickey testified that he told Josephine that
he believed Rodney and Abdoo were taking money out of her accounts. Rickey thus made
Josephine suspicious of Rodney and Abdoo in an attempt to have her place her trust and faith
only in him.

        By limiting the people Josephine was exposed to or allowed to speak to, Rickey ensured
that he was the significant influence over Josephine. By yelling at her and making things
difficult for her to visit others, he made sure Josephine was dependent on him for her
transportation and well-being, and by making her suspicious of her sons and the niece that was
like a daughter to her, Rickey attempted to ensure that she looked to only him as trustworthy and
the one who looked out for her.

        Third, Rickey took advantage of Josephine’s dementia and age. Evidence was presented
that Josephine was diagnosed with dementia by a physician in 2009 and severe dementia in
August 2010. George testified that Josephine required live in help because she had dementia.
She forgot things and required a calendar, which she looked at many times daily, to keep track of
events. George testified that he first noticed Josephine’s memory issues in 2008 when she got
lost driving home from her regular church and that her short term memory went very quickly.
George also testified that sometime around 2009 Josephine’s dementia got bad enough where he
could talk to her and 30 seconds later she would not remember you were talking to her; she
would just drift off. George testified that Josephine said on many occasions that she loved all
four boys and wanted whatever she had split evenly when she died.

        Abdoo testified that she noticed problems with Josephine’s memory starting 2008 when
Josephine got lost driving home from her regular church. Abdoo testified that she had gone to
the doctor with Josephine and that Josephine’s doctor was going to prescribe a medication for
dementia but the side effects would adversely affect her asthma. According to Abdoo, Josephine
told her that she wanted all four of her boys to have equal shares of her estate. Josephine was
always adamant that she had a will with all four boys’ names in it and that Rickey could buy the
other three boys out of their shares of the house. Abdoo testified that up until the time she
passed away, Josephine thought everything was going to be divided four ways.

                                                -5-
       Rodney testified that after 2008, he noticed that Josephine was “kind of losing it.” She
was repeating everything and would keep him on the phone for hours saying the same things
over and over.

        Eggen similarly testified that at some point she noticed that Josephine kept repeating
herself and that her recent memory was not good. Josephine would have difficulty at times
remembering how to count the dice during games with their friends. Josephine would talk to
Eggen frequently about making a will and how she wanted everything to be divided between her
boys. Every time someone would pass away, both before and after 2010, Josephine would bring
it up again to Eggen.

        Keener testified that after Josephine stopped working around 2004 or 2005 she began to
get forgetful. Keener got a call from the police one day because Josephine was lost. Josephine’s
memory loss progressed greatly over the years and, according to Keener, deteriorated to the point
where she did not know her grandchildren and would forgot if she ate. Keener testified that after
2010 Josephine discussed dying a lot and told Keener that she had a will to make sure all four
boys split the house and if Rickey wanted it, he had to buy his brothers out.

        Charles testified that he started to notice his mother’s dementia around 2007 when she
started repeating herself a lot. As time went along, it got worse and worse and she was confused
a lot about a lot of things.

        Rickey, interestingly, testified that he did not notice a decline in his mother’s mental
health until July 2014. However, he also obtained a power of attorney over her financial matters
in 2010. Rickey also chose to not discuss important matters with Josephine because she was
“tired” or “under stress.” He therefore used her age, weakened condition, and dementia when it
suited his interests, including engaging in some highly suspicious self-dealing transactions
which, as the probate court noted, seriously damaged his credibility.

        Using the 2010 power of attorney he obtained over Josephine’s financial matters, Rickey
signed a promissory note on behalf of his mother in 2013 whereby his mother promised to pay
him $50,000. He also signed a mortgage on his mother’s house in his favor for $50,000. Rickey
did not go over the amounts with his mother or tell her he was signing a mortgage on her behalf
although she was, according to Rickey, competent and alert at that time. In order to have an
attorney draft the promissory note and mortgage, Rickey provided the attorney with, among
other things, the physician’s statement that Josephine suffered from dementia. Rickey testified
that he did not tell Josephine about the note and mortgage because he did not want to bother her
with such things.

        Rickey testified that the promissory note and mortgage were for things he had paid for on
behalf of his mother for which she had told him she would repay him. These items dated back
into the 1990’s, were not well documented and were, as observed by the probate court, likely
intended as gifts. They included payments for some utility bills Rickey paid while he was living
with Josephine, rent-free, meals he had purchased for his mother, and plumbing repairs on the




                                               -6-
home. Rickey made a claim against Josephine’s estate for approximately $53,000 for expenses
for the care of Josephine and payment of the mortgage.2 The fact that Rickey would place a
mortgage on the house in his own favor for things he had done for his mother over a 20 year
period and then make a claim against her estate for over $53,000 serves as significant evidence
that Rickey intended to do whatever it took to ensure that he and he alone received the house.

        Rickey cites to In re Jennings' Estate, 335 Mich 241; 55 NW2d 812 (1952) as support for
his position that there was no undue influence exercised over his mother. In that case, however,
the proof given to establish undue influence focused primarily on what the challenger of the will
did for the deceased and a few statements made by the deceased. Here, in contrast, the trial court
focused on Rickey’s actions and Josephine’s reactions to him, as well as her statements to others.

        Rickey also cites to In re Hoffman's Estate, 300 Mich 406; 2 NW2d 442 (1942) where a
grandson objected to the revocation of his grandmother’s will providing for him, that had been
executed a short time before her death. The grandson asserted that his father had exerted undue
influence over the grandmother to have her revoke the will. The bulk of the evidence relied upon
by the grandson was statements made by the grandmother in letters to him about the behavior of
the father, which she did not necessarily approve of and the fact that he had little to say to her.
Evidence was also introduced that the revocation was executed when the grandmother was
bedridden and was made at the direction of the father. Here again, the focus was not so much on
what the father actually did to allegedly unduly influence the grandmother but on the
grandmother’s feelings about certain actions and attributes of the father.

        Here, in contrast, a host of witnesses testified that Rickey yelled at his mother, often
stated that he would put her in a nursing home, of which she was deathly afraid, and played upon
her emotions. Rickey did present witnesses on his behalf, who testified that he was a loving son,
which he undoubtedly was, at times. It is notable, however, that two of Rickey’s three witnesses
saw Josephine only sporadically and only when she was alone with Rickey.

         Ultimately, this matter came down primarily to a credibility contest, and the trial court
found Rickey to not be entirely credible. “[This Court] scrupulously leave[s] questions
of credibility to the trier of fact to resolve.” People v Ericksen, 288 Mich App 192, 197; 793
NW2d 120 (2010); see also MCR 2.613(C). There were several key issues on which Rickey’s
trial testimony conflicted with his deposition testimony and with the testimony of others. For
example, Rickey testified at trial that he did not know that the 2010 will gave him Josephine’s
house to the exclusion of his brothers until he received something in the mail after she died. He
also testified that Josephine, however, had told him he was getting the house. Rickey also
testified that his brothers did nothing for their mother for the 15 years prior to her death and that
he did everything, whereas a multitude of other witnesses testified that all of Josephine’s sons
contributed to her well-being, financially and otherwise.




2
  On the last day of trial, Rickey withdrew his claims concerning the mortgage and the
underlying alleged debt.


                                                -7-
        Giving due deference to the judge’s ability to determine the credibility of witnesses, it is
evident that Rickey subjected Josephine to threats of placing her in a nursing home,
misrepresentations that he was the only son who loved her, and coercion through tears, pleas and
anger sufficient to overpower Josephine’s volition and impel her to act against her inclination
and free will in signing the 2010 will. In re Estate of Karmey, 468 Mich at 75. The probate
court thus properly set aside the September 2010 will.

       Affirmed.



                                                             /s/ Karen M. Fort Hood
                                                             /s/ Deborah A. Servitto
                                                             /s/ Jane M. Beckering




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