IN RE CAROL ANN TIMMONS DECEASED
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STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of CAROL ANN TIMMONS, Deceased.
ARTHUR L. TIMMONS, JR. and EDWARD E.
TIMMONS,
UNPUBLISHED
October 24, 2000
Petitioner-Appellees,
v
GAY TIMMONS, Personal Representative of the
Estate of CAROL ANN TIMMONS, Deceased,
No. 219650
Branch Probate Court
LC No. 97-030494-IE
Respondent-Appellant,
and
IVAN EGNATUK, Successor Personal
Representative of the Estate of CAROL ANN
TIMMONS, Deceased, CENTURY BANK AND
TRUST, Successor Trustee, and LACE D.
TIMMONS, Minor,
Appellees.
Before: Fitzgerald, P.J., and Hood and McDonald, JJ.
PER CURIAM.
Following a jury trial, the trial court entered an order invalidating a July 1997 codicil to Carol
Ann Timmons’ will and a July 1997 amendment to her trust.1 The codicil and amendment effectively
disinherited petitioners, who were Timmons’ stepsons, and their children and left Timmons’ entire estate
to respondent and her children. The jury found that the codicil and trust amendment were the product
1
Carol Ann Timmons will be referred to as Timmons throughout this opinion.
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of undue influence by respondent and that Timmons was incompetent to execute the codicil and trust
amendment. Respondent appeals as of right, arguing that the trial court should have granted her motion
for a new trial on the ground that the jury’s verdicts were against the great weight of the evidence. We
conclude that the trial court abused its discretion when it denied respondent’s motion for new trial and,
accordingly, reverse and remand for a new trial.
We note at the outset that the trial court did not meet its obligation with regard to deciding the
new trial motion. A new trial may be granted if a verdict is against the great weight of the evidence or is
contrary to law. MCR 2.611(A)(1)(e). In ruling on a motion for a new trial based on a claim that the
verdict was against the great weight of the evidence, the trial court’s function is to determine whether the
overwhelming weight of the evidence favors the losing party. Phinney v Perlmutter, 222 Mich App
513, 525; 564 NW2d 532 (1997).
A trial court may grant a motion for a new trial based on the great weight of the
evidence only if the evidence preponderates heavily against the verdict so that a
miscarriage of justice would result from allowing the verdict to stand. [In re Ayres, 239
Mich App 8, 23; 608 NW2d 132 (1999).]
MCR 2.611(F) provides:
In ruling on a motion for a new trial . . ., the court shall give a concise statement
of the reasons for the ruling, either in an order or opinion filed in the action or on the
record.
In this case, respondent filed a motion for judgment notwithstanding the verdict (JNOV) or, in
the alternative, a new trial on the ground that the verdict was against the great weight of the evidence.
The standards for JNOV and new trial are different. See Phinney, supra at 524-525. The record
demonstrates that the trial court only reviewed the case under the more strict JNOV standard even
though a new trial motion was pending on great weight grounds also. While the trial court did make a
conclusory statement that the verdict was not against the great weight of the evidence, it did not set forth
its concise reasons for making the finding and did not engage in the required function of determining
whether the overwhelming weight of the evidence favored respondent.
We find that the trial court’s failure in this regard is not an impediment to our review. The trial
court ruled on the new trial motion and the issue is therefore preserved. In reviewing a trial court’s
decision denying a new trial motion, “[t]his Court's function is to determine whether the trial court
abused its discretion” in finding that the verdict was not against the great weight of the evidence.
Phinney, supra at 525.
A verdict may be overturned on appeal only when it was manifestly against the
clear weight of the evidence, and substantial deference will be given by this Court to a
trial court's determination that a verdict is not against the great weight of the evidence.
[Watkins v Manchester, 220 Mich App 337, 340; 559 NW2d 81 (1996) (citations
omitted).]
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Although this Court is required to give the trial court’s decision substantial deference, it is incumbent
upon this Court to engage in an in-depth analysis of the record. Arrington v Detroit Osteopathic
Hosp, 196 Mich App 544, 560; 493 NW2d 492 (1992).
An in-depth analysis of the evidence leads to the conclusion that the trial court abused its
discretion in denying the motion for a new trial. The jury’s verdict was overwhelmingly against the great
weight of the evidence.
First, the jury found that the codicil to the will and the amendment to the trust were the product
of undue influence.
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 the
grantor’s inclination and free will. Motive, opportunity, or even ability to control, in
the absence of affirmative evidence that it was exercised, is not sufficient.
A presumption of undue influence arises upon the introduction of evidence that
would establish (1) the existence of a confidential or fiduciary relationship between the
grantor and a fiduciary, (2) the fiduciary, or an interest represented by the fiduciary,
benefits from the transaction, and (3) the fiduciary had an opportunity to influence the
grantor’s decision in the transaction. [In re Erickson Estate, 202 Mich App 329, 331;
508 NW2d 181 (1993), citing Kar v Hogan, 399 Mich 529, 537; 251 NW2d 77
(1976) (emphasis added).]
See also In re Peterson Estate, 193 Mich App 257, 260; 483 NW2d 624 (1992).
The introduction of evidence on the aforementioned factors creates a "mandatory inference" of
undue influence, which shifts the burden of going forward with contrary evidence to the person
contesting the claim of undue influence. In re Estate of Mikeska, 140 Mich App 116, 121; 362
NW2d 906 (1985). “However, the burden of persuasion [always] remains with the party asserting
such.” Id. See also In re Peterson Estate, supra at 259-260.
In this case, there was evidence to support the presumption. There was a confidential
relationship between respondent and Timmons. A confidential relationship is present when a person,
who is enfeebled by poor health, relies on another to conduct banking or other financial transactions. In
re Swantek Estate, 172 Mich App 509, 514; 432 NW2d 307 (1988). In addition, respondent
benefited from the change in Timmons’ will and trust and it is uncontested that respondent had the
opportunity to influence Timmons’ decisions. Although the presumption of undue influence arose, it was
clearly rebutted at trial.
There was simply no affirmative evidence that respondent exercised undue influence over
Timmons. There was no evidence that respondent threatened, misrepresented facts, unduly flattered,
committed fraud or physically or morally coerced Carol. To the contrary, numerous witnesses testified
that they never saw respondent threaten, coerce or try to manipulate Timmons with regard to anything
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other than her alcohol consumption, which respondent tried to limit or stop. In addition, numerous
witnesses testified that Timmons was strong willed and coherent unless she was “falling down drunk.”
There was no evidence that Timmons was in such a condition when she changed her will and trust or
when she decided to change the will and trust. Indeed, neither petitioner was able to testify that the
codicil and trust amendment were the product of undue influence because they had not seen Timmons in
numerous months before the execution of the documents. Petitioner Edward Timmons actually testified
that he was unaware of any fraud or influence that respondent had over Timmons and, in fact, testified
that Timmons was “too smart” to be influenced unless she was in a stupor. More significantly, Donna
Wheaton, who was Timmons’ personal secretary for years and also her sister-in-law, testified that she
never saw respondent force or threaten Timmons to do anything and never coerced Timmons into giving
her anything. Like Edward Timmons, Wheaton testified that no one could force Timmons to do
anything and that Timmons always did what she wanted. Wheaton testified that when Timmons was
sober or had her alcohol intake regulated, she was clearheaded, functional and able to take care of her
own financial affairs. We also find significant the testimony that respondent was opposed to Timmons’
disinheriting petitioners.
Moreover, on the videotape wherein Timmons disowned and disinherited petitioners, she stated
that she was acting of her own free will. It was uncontroverted that Timmons, herself, arranged the
meeting with her own attorney to change the will and trust. Respondent was not present in the room
when the videotape was made or the codicil and trust amendment executed. There was a clear absence
of direct evidence to support a conclusion that respondent exercised undue influence over Timmons in
order to procure the codicil and trust amendment.
In addition, there was no evidence from which to reasonably infer that respondent exercised
undue influence over Timmons. First, petitioners’ counsel tried to elicit testimony that alcohol was given
or withheld in order to influence the decision. He was unable, however, to get a single witness to testify
in support of this theory. Timmons had been an alcoholic for more than twenty-five years and, during
that time, she had executed numerous documents and taken care of her own financial matters.
Timmons’ use of alcohol, standing alone, does not translate to a finding of undue influence. More
importantly, the testimony at trial showed that respondent did nothing more than Timmons’ deceased
husband had done with regard to regulating Timmons’ alcohol consumption.
Second, there was no testimony to support a conclusion that respondent forced Timmons to
open joint checking accounts with respondent or forced or coerced Timmons into allowing respondent
to spend money from those joint accounts. The testimony and the videotape itself demonstrate that
Timmons was aware that she had joint accounts with respondent and that respondent was spending
money from the accounts. There was no evidence that respondent ever spent any money or conducted
any business with regard to those accounts in violation of Timmons’ wishes or directions. Cf. Swantek
Estate, supra at 514. Thus, the fact of that there were joint accounts and that significant money was
spent from them does not lead to a reasonable inference that there was undue influence.
Finally, the timing of the codicil and amendment further supports the conclusion that they were
not the product of undue influence. Testimony revealed that, over a period of time after her husband’s
death, Timmons contemplated disinheriting petitioners. She discussed it with numerous people, all of
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whom indicated that she was coherent when the discussions took place. On July 9, 1997, she stated on
a videotape that “something more” would have to happen in order for her to take action. Subsequently,
Timmons made her decision to disinherit petitioners after they questioned her competency in letters sent
by an attorney whom Timmons had previously terminated. Timmons was angry and upset that her
competency was questioned. She believed that petitioners had a “stench” of greed.
In Kar, supra at 542-543, this Court found that the deceased was not unduly influenced. She
was seventy-two years old and physically declining. Id. She had been hospitalized several times. Id.
However, there was evidence that she was strong-willed and mentally competent and capable of
handling her own affairs. Id. at 542. Her lawyer testified that she acted of her own will and was not
subject to undue influence when she engaged in the transaction that was at issue. Id. at 543. Although
there was testimony to the contrary, the Court found that evidence establishing that she was strong
willed and capable of handling her own affairs, coupled with the testimony from her lawyer, was
sufficient to rebut the presumption of undue influence. The Court, noting that the deceased “sought out
and retained independent counsel and [] supplied the impetus behind the procurement of the deed,”
found that the petitioners failed to meet their burden of persuasion on the issue of undue influence. Id. at
543-544.
Here, the evidence presented at trial did not support a reasonable inference of undue influence.
As previously noted, motive, opportunity, and ability to control are not sufficient to show undue
influence in the absence that they were actually used. Petitioners failed to meet their burden of
persuasion on the issue of undue influence and the jury’s conclusion to the contrary was perverted. The
trial court abused its discretion when it failed to grant a new trial on the ground that the jury verdict was
against the great weight of the evidence.
Similarly, the jury’s verdict that Timmons was incompetent to make the codicil to the will and
the amendment to the trust was against the great weight of the evidence.
It is presumed that a testator has the mental competency to make a will. MCL 600.2152;
MSA 27A.2152; In re Powers Estate, 375 Mich 150, 158; 134 NW2d 148 (1965). The
requirements for testamentary capacity are set out in numerous cases, including In re Sprenger’s
Estate, 337 Mich 514, 521; 60 NW2d 436 (1953) and In re Carmas’ Estate, 327 Mich 235, 240;
41 NW2d 355 (1950). In In re Sprenger’s Estate, supra at 521, the Court stated:
To have testamentary capacity, an individual must be able to comprehend the
nature and extent of his property, to recall the natural objects of his bounty, and to
determine and understand the disposition of property which he desires to make. The
burden is upon the person questioning the competency of the deceased to establish that
incompetency existed at the time the will was drawn. [Citations omitted.]
In In re Carmas’ Estate, supra at 239-240, quoting In re Walker’s Estate, 270 Mich 33; 258 NW
206 (1935), the Court stated:
“In general the requisite is that the testator must at the time of making his will
have sufficient mentality to enable him to know what property he possesses and of
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which he is making a testamentary disposition, to consider and know who are the
natural objects of his bounty, and to understand what the disposition is that he is making
of his property by his will.”
The burden is on the person questioning the testator’s competency to establish that the testator was
incompetent at the time the will was drawn. In re Vollbrecht Estate, 26 Mich App 430, 434; 182
NW2d 609 (1970).
In this case, there was testimony that Timmons was only incompetent when she was “falling
down” drunk. Petitioners had not seen Timmons for numerous months before the codicil and will were
executed and, accordingly, could not testify about her competency at the time the codicil and trust
amendment were executed.2 At trial, there was absolutely no testimony that, at the time the codicil and
amendment were executed, Timmons was “falling down drunk” or that she was otherwise intoxicated or
incapacitated in anyway. To the contrary, in the month when the codicil and amendment were signed,
Timmons was making her own medical decisions, taking care of insurance matters, discussing different
issues with her attorney, and coherently discussing disinheriting petitioners because she felt they did not
care about her.
The videotape made immediately before the signing of the codicil and trust amendment
demonstrates that Timmons knew where she was, knew that she wanted to amend her will and trust,
and knew that she was disinheriting and disowning petitioners. Timmons was aware that the last time
she saw petitioners was during the time surrounding their father’s funeral. She indicated that she felt
they were strangers. She also indicated that anyone who “played” with her will should be considered to
have predeceased her. On the videotape, Timmons corrected her attorney when she gave wrong
information about the location of her husband’s burial and, she discussed her own wishes to be
cremated. Immediately after the videotape, the documents at issue were executed.
There was no evidence to contradict that Timmons understood the nature and extent of her
property. There was no evidence to contradict that she knew what she was doing when she signed the
codicil and trust amendment. Rather, the evidence indicated that Timmons knew who she was omitting
from the will and trust, knew that, by her actions, she was making provisions for the disposition of her
property after her death, and knew that her actions disinherited people who were previously going to
partake of her estate. While Timmons may have been physically weak at the time and wrong about
certain details, i.e. the specific nature of the legal action against her former attorney in Chicago3 and
2
Interestingly, Edward Timmons testified that he was not even aware that Carol’s competency was an
issue in the case.
3
On July 9, 1997, Timmons indicated on the videotape that she was involved in a lawsuit against her
former attorney in Chicago. While discovery was ongoing in the matter in Chicago and papers had
been filed with the courts, no formal pleadings had not yet been filed. Thus, she was not formally a
party. This was a fact that the petitioners emphasized when trying to convince the jury that she was not
competent. Similarly, in the July 28, 1997 videotape, she referred to the lawsuit as a “class action” and
it was not. Petitioners emphasized this fact to demonstrate her incompetence.
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whether her pre-codicil will still included terms for her deceased husband, those factors do not negate
the legal standard for testamentary competency, which is a minimal standard.
In Guntzviller v Gitre, 195 Mich 695, 704-705; 162 NW 290 (1917), the Court stated:
[I]nstruments, testamentary in character or effect, disposing of property, are not
to be set aside merely because the grantors or testators are old or weak, or foolish, or
lack the average mental capacity of their neighbors or relatives. If they possess
sufficient mentality to know and understand the transaction in which they are engaged,
the extent and value of their property, those who are the natural objects of their bounty,
are able to carry in their minds the general scope of the instrument and its effect, to
whom they are giving and from whom withholding, they have the mental capacity to
make such disposition, and if sufficient capacity exists it is not for the court to measure
degrees of capacity or to indulge in comparison with other minds.
The only evidence presented by petitioners to oppose Timmons’ competence was the testimony
of Rita Brown, a worker at the Laurels nursing home. Brown testified that, on July 28, 1997, Timmons
returned to Laurels with alcohol on her breath and Brown did not believe that Timmons fully understood
the subsequent discussion that Brown had with her. However, Brown never spoke to or saw Timmons
before she made the videotape and executed the documents at issue. Brown also could not testify when
Timmons was returned to Laurels. Thus, even if Brown’s testimony, which was strongly contradicted
by Timmons’ attorney and respondent, was true, it does not negate Timmons’ competence at the time
of the signing of the codicil and trust amendment. The competency of the testator is judged at the time
of the making of the will and the testator only must know the requisite factors “long enough to dictate his
will without prompting from others.” In re Thayer’s Estate, 309 Mich 473, 476-477; 15 NW2d 712
(1944). Timmons’ attorney, who was present at the time the videotape was made and the codicil and
amendment executed, testified that Timmons was not under the influence and was coherent and
competent at the time.
In In re Thayer’s Estate, supra at 477, the Court stated that “[m]ere eccentricity of behavior
on the part of the testator will not cause an inference strong enough to invalidate a will” providing the
necessary factors for competency are present. Here, while there was evidence of eccentric behavior,
including lavish spending and alcoholism, and evidence that Timmons was unsophisticated with regard to
legalese, there was no evidence of mental incompetency to invalidate the testamentary instruments.
In In re Weber’s Estate, 201 Mich 477, 479-480; 167 NW 937 (1918), the testatrix was an
alcoholic for years and died an early death as a result of cirrhosis of the liver. Before her death, she was
angered by her son’s diversion of some of her money to a joint bank account and by his court action,
questioning her abilities. Id. There was evidence both pro and con that during the time frame
surrounding the making of her will, she was having mental difficulties. Id. at 481. The Court did not
invalidate her will. It noted that she had disposed of her home a few months before the will was made
and no one had questioned her competency to do that. In addition, no one testified that she was under
the influence of liquor at the time the will was executed or for two weeks before that. Id. The testatrix
sought out a lawyer to write her will. Id. at 481-482. Those present at the time the will was executed
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testified that the testatrix was entirely competent. Id. at 482. There was no evidence at all that on the
day she signed her will she was incompetent. Id. The Court noted that the mental capacity required to
make a valid will is less than that which is required to form a contract. Id. It also found that the
question of the use of intoxicating liquor did not change the ruling with regard to her competency. Id. at
482-483.
We find that the evidence presented at trial preponderates so heavily against the jury’s verdict
that it would be a miscarriage of justice to allow the verdict to stand.
Reversed and remanded for a new trial. We do not retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ Harold Hood
/s/ Gary R. McDonald
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