IN RE WEIR ESTATE
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STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of AVIS LAVERNE WEIR.
CYNTHIA GILBERTSON, KATIE DICKSON,
and TIMOTHY KING,
UNPUBLISHED
November 18, 2010
Petitioners-Appellants,
v
No. 291796
Oakland Probate Court
LC No. 2006-305605-DE
CRAIG L. GILBERTSON,
Respondent-Appellee.
Before: MURPHY, C.J., and METER and SHAPIRO, JJ.
PER CURIAM.
In this will contest amount family members of decedent Avis Laverne Weir, petitioners,
Cynthia Gilbertson, Katie Dickson, and Timothy King, appeal as of right an order granting a
motion for summary disposition filed by respondent Craig L. Gilbertson, the decedent’s nephew
and the personal representative of her estate. We affirm in part, reverse in part, and remand for
additional proceedings.
I. BACKGROUND
Gilbertson and respondent1 are brother and sister and, as the children of one of decedent’s
sisters, are the niece and nephew of the decedent. Dickson and King are Gilbertson’s children.
The decedent died on June 10, 2006, with her husband having predeceased her on January 10,
2004, leaving no children. On March 23, 2006, decedent executed a will. The March 2006 will
left everything to respondent with no mention of any of the petitioners, and the alternate
1
Given that there are multiple petitioners, we shall refer to each petitioner by last name.
Because petitioner Cynthia Gilbertson and respondent Craig Gilbertson share a last name, we
shall refer to respondent only by party designation, such that all references simply to
“Gilbertson” shall refer to petitioner Gilbertson.
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beneficiary being one Mary Ann Delisle, decedent’s husband’s niece. Although decedent
apparently had a prior will, it has not surfaced, and the March 2006 will expressly revoked “all
my prior wills.” On August 8, 2006, respondent filed a petition requesting that the probate court
appoint him as the personal representative of the decedent’s estate and that the court probate
decedent’s estate according to the March 2006 will. The documents filed by respondent do not
mention petitioners as interested persons in the estate; they mention only decedent’s other sister,
Winona Gilbertson.2
On October 27, 2006, petitioners objected to the admission of the will to probate and
requested both supervised probate administration and that respondent be required to post a bond.
The objections asserted included (1) that respondent committed fraud upon the court by falsely
and intentionally failing to disclose his sister’s existence and (2) that the March 2006 will was
invalid because decedent did not have the proper physical and mental capacity to execute it, as
she was operating under respondent’s undue influence, as well as suffering from “insane
delusions.”
In December 2007, respondent filed a motion for summary disposition of petitioner’s
objections on the ground that petitioners had failed to show any evidence of a lack of
testamentary intent, undue influence, insane delusions, fraud, or duress. Petitioners filed a
response opposing respondent’s motion, urging that multiple fact questions existed based on the
record evidence which required the claims to proceed to trial.
The probate court declined to have oral argument on the motion, requiring the parties to
file briefs on their positions. On November 7, 2008, the probate court issued its opinion and
order granting respondent’s motion for summary disposition. It held that whether the Will was
executed was a matter of law and concluded that the attorneys who witnessed the will signing
concluded that the decedent was of sound mind and that the other evidence did not dispute their
testimony and concluded that the will was properly executed.
The probate court again relied on the testimony of the two attorney witnesses to conclude
that the decedent had the proper testamentary capacity at the time of the execution. It
disregarded the medical testimony to the contrary because it was “written by a doctor that never
saw the Decedent.” Without that evidence, there was nothing to suggest the decedent did not
have testamentary capacity, and so it granted summary disposition on the issue. The probate
court also granted summary disposition as to undue influence because, “[w]hile the contestants
may be able to provide motive, opportunity and even the ability to control, they fail to provide
any affirmative evidence that it was exercised.”
The probate court concluded that there was no evidence of duress because none of the
petitioners had any knowledge that duress occurred. The probate court tossed out the insane
delusions claim because, although it recognized one of the petitioners provided testimony
regarding behaviors that “at first glance . . . might seem like an insane delusion,” it concluded
2
Her interests are not at issue in this appeal.
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that petitioners failed to show that she “persistently had this confusion,” that she acted as if such
facts actually existed, or that there was any connection between these actions and the
construction or execution of the will. Finally, the probate court granted summary disposition as
to petitioners’ fraud claim by summarily finding that none of the elements were pled or shown by
the evidence. The probate court also concluded that Dickson was estopped from challenging the
will unless she gave up the personal property she received under the will, but found no estoppel
as to the claims of Gilbertson or King.
Petitioners requested a rehearing or reconsideration. After the motion was filed and
scheduled, but before it was heard, the probate judge retired. The motions were ultimately heard
by the newly elected probate judge on March 18, 2009. The probate court entered an order
denying the motion on April 9, 2009. Petitioners now appeal.
II. ANALYSIS
A. STANDARD OF REVIEW
We review a trial court’s decision on a motion for summary disposition de novo. Maiden
v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Because both parties in their briefs
relied on evidence outside the pleadings, such as documents and an affidavit, we review the
record as a motion for summary disposition brought under MCR 2.116(C)(10). Silberstein v
Pro-Golf of America, Inc, 278 Mich App 446, 458; 750 NW2d 615 (2008). Summary
disposition may be granted under MCR 2.116(C)(10) when “there is no genuine issue of material
fact, and the moving party is entitled to judgment . . . as a matter of law.” We view all of the
evidence in the light most favorable to the nonmoving party. Robertson v Blue Water Oil Co,
268 Mich App 588, 592; 708 NW2d 749 (2005).
B. TESTAMENTARY CAPACITY
The probate court concluded both that the will was properly executed as required by law
and that testamentary capacity existed. Oddly, it concluded that the decedent was of “sound
mind” in its determination that the will was properly executed, before it considered whether the
decedent had testamentary capacity. Because the determination of whether the decedent was of
sound mind is the same test as that of testamentary capacity, we are uncertain why the probate
court addressed these as separate claims. Accordingly, we address them together as testamentary
capacity.
To have testamentary capacity, an individual must be able to comprehend
the nature and estate 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. [In re
Sprenger Estate, 337 Mich 514, 521; 60 NW2d 436 (1953).]
Based on the evidence, we believe that the probate court erred in granting summary
disposition on this issue because there was an outstanding factual question as to whether the
decedent had testamentary capacity at the time she executed the will.
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The probate court relied exclusively on the testimony of the two attorneys who witnessed
the will execution to the exclusion of all else. Not only was this an improper fact finding by
weighing the evidence, which is impermissible at the summary disposition stage, In re Peterson
Estate, 193 Mich App 257, 261; 483 NW2d 652 (1992), it was improper consideration of the
evidence in the light most favorable to respondent, instead of petitioners who were the
nonmoving party.
Petitioners provided evidence in the form of a medical opinion from Dr. Ron Samarian.
Dr. Samarian summarized various medical documents and then concluded:
Although I had never had the opportunity to evaluate Mrs. Wier in person, it is
my opinion, based on the review of her records, that it would be highly unlikely
that she would be able to comprehend the full depth and meaning of the concept
of her estate as well as sustain and fully appreciate the concept of her heirs.
The probate court disregarded Dr. Samarian’s opinion because he had never seen the decedent in
person. Respondent relies on an unpublished case from a panel of this Court to support the
probate court’s actions. However, not only is that case not precedential, MCR 7.215(C)(1), but
there are several facts about that case that makes it inapplicable. The most important fact is that
the instant case was decided on summary disposition, whereas the unpublished case was decided
after a bench trial, at which witnesses testified. Thus, the probate court in that case could
properly conclude that the attorney’s testimony outweighed that of the physician because it was
in a position to make factual findings. That was not true in the instant case because it was being
decided on summary disposition. They very fact that the doctor’s testimony disputed that of the
attorneys created a factual question that precluded summary disposition.
Furthermore, the psychiatrist in the unpublished case explicitly “stated that it would be
better to defer to [the attorney]’s judgment” on the issue of legal capacity. The doctor made no
such concession in this case. Finally, it is important to note that, even though Dr. Samarian
never personally evaluated the decedent, he was simply forming an opinion based on the medical
records created by physicians who had personally evaluated her. Those records, which were also
provided to the probate court, included records from September 1998, diagnosing the decedent
with “[a]dvanced dementia most likely multi-infarct process”; from March 1999, where the
physician explicitly stated that he felt “this patient does have a dementia of Alzheimer’s type”;
from January 2006, that diagnosed her with history of stroke and dementia; from April 2006,
only a few weeks after the will was executed, which indicated she had problems with problemsolving, sequencing, immediate, short-term and long-term memory; from May 2006, diagnosing
her with dementia with delirium, depression, and delusions; also from May 2006, finding that
she was only oriented to herself, and not to place or time; from June 2006, in which she was
found to have “inability to focus and answer interview questions” and indicated that she had “no
other living family” besides respondent; and, also from June 2006, concluding she had a
“memory deficit, short and long term with inability to make safe decisions or to make needs
known effectively.” Thus, even without Dr. Samarian’s summary, the medical evidence before
the probate court raised a factual question as to whether the decedent had testamentary capacity.
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In addition to the medical records, Dickson provided testimony that created factual
questions as to the decedent’s mental abilities. Dickson went to visit the decedent about every
month. According to Dickson the decedent got “generally confused” as to who Dickson and her
children were and called Dickson by different names. This got worse as the decedent got older.
The decedent “got more and more forgetful as time went by.” Dickson would call the decedent
and, even though they had recently spoken, the decedent would say “I haven’t talked to you in a
couple of weeks. Where have you been?” She also heard the decedent speak about “people who
were dead as if they were alive.” The decedent would ask Dickson if she had talked to her
grandmother, or how her grandfather was doing, although both of them were deceased. Thus,
there exists factual questions as to the decedent’s testamentary capacity, because it is not clear
that she knew who people were or what relatives she had.
Dickson also testified that she tried to help the decedent by offering help with her
checking account or taking her to doctor’s appointments, but the decedent always refused, saying
that respondent was doing it. When coupled with the attorneys’ statements that the decedent
indicated that “she had no children and that as far as anybody else concerned in her life, no,
[respondent] was the person in her life that had taken care of her and had done things for her,”
there is some question as to whether the decedent remembered Dickson at all. Neither attorney
indicates that they ever inquired as to whether there were, in fact, other relatives that the
decedent knew of and was omitting. Rather, they seem to have taken at face value that
respondent was the only relative—a fact further supported by the fact that the attorneys failed to
initially name any of the petitioners as relatives or people of interest in the estate in the initial
probate filings. A factfinder could interpret the decedent’s statement as a failure to remember
that she had any other relatives at all, let alone ones that offered to help her. Alternatively, the
factfinder could conclude that she was simply stating a preference. Either way, it’s a factual
question that must be left to the factfinder to resolve.
Although respondent is free to argue at trial that the decedent was having a lucid moment
during the will execution, the fact that she had memory issues and problems knowing who her
relatives were and who was alive prior and after the execution certainly is sufficient to raise the
specter of whether she was cognizant at the time the will was executed. Accordingly, taking the
evidence in the light most favorable to petitioners, summary disposition as to the issue of
testamentary capacity was improper.
C. UNDUE INFLUENCE
As to petitioners’ claims of undue influence and breach of fiduciary duty, we hold that
the probate court erred in granting summary disposition because petitioners established the
presumption of undue influence. The presumption of undue influence arises in transactions
where the evidence establishes “‘(1) the existence of a confidential or fiduciary relationship
between the grantor and a fiduciary, (2) that the fiduciary (or an interest which he represents)
benefits from the transaction, and (3) that the fiduciary had an opportunity to influence the
grantor’s decision in that transaction.’” In re Karmey Estate, 468 Mich 68, 73; 658 NW2d 796
(2003)), quoting Kar v Hogan, 399 Mich 529, 537; 251 NW2d 77 (1976). Additionally, claims
of undue influence and the presumption do not apply solely to wills, but also apply when assets
are changed to be jointly titled in order to bypass probate. See Habersack v Rabaut, 93 Mich
App 300, 305; 387 NW2d 213 (1979) (applying the presumption of undue influence to the
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creation of joint checking accounts). Thus, if petitioners establish the presumption of undue
influence, it applies to both the execution of the will, as well as the transfers to joint checking
accounts and joint ownership of property that occurred prior to the execution of the will.
The undisputed evidence established that respondent had been given a general power of
attorney over the decedent’s affairs, which establishes the fiduciary relationship as a matter of
law. See In re Conant Estate, 130 Mich App 493, 498; 343 NW2d 593 (1983). As for the
transfers that occurred prior to the execution of the general power of attorney, respondent has not
disputed that he was responsible for helping the decedent with her financial affairs after her
husband died, and he even testified that he was the one who drafted the quit claim deed that
transferred the decedent’s property to him. Thus, there was sufficient evidence in the record that,
even prior to the execution of the formal power of attorney, respondent and the decedent shared a
confidential or informal fiduciary relationship. See Boden v Renihan, 299 Mich 226, 239; 300
NW 53 (1941) (holding that a fiduciary relationship can be founded, in general, on intimate
personal or business relations in which trust or confidence is accepted).
The evidence also showed that respondent had the opportunity to influence the decedent’s
decisions, as there was evidence that he wrote checks, he testified that he drafted the quit claim
deed that transferred the decedent’s property to him and that he had taken her to the banks when
she had changed over various accounts to include his name. Finally, respondent’s receipt of
numerous assets based on the addition of his name to the decedent’s accounts and deeds meets
the third requirement that he benefit from the transaction. Accordingly, petitioners provided
evidence sufficient to create the presumption of undue influence.
The trial court concluded that even though petitioners had met the elements for the
presumption, their failure to show it was exercised was sufficient to permit summary disposition.
This was clear error. The probate court erroneously relied on In re Erickson Estate, 202 Mich
App 329; 508 NW2d 181 (1993), as it involved factual findings made at a bench trial, as opposed
to summary disposition. Furthermore, In re Peterson Estate, 193 Mich App 257, which the
probate court also referenced, stands for precisely the opposite proposition for which it was cited.
In Peterson, this Court reversed the probate court’s grant of summary disposition because the
petitioner had developed the facts to invoke the presumption and noted that, “It is well settled
that a trial court may not make findings of fact or weigh credibility in deciding a motion for
summary disposition. Whether the presumption of undue influence is rebutted is a question to be
resolved by the finder of fact.” Id. at 261 (citations omitted). Because the presumption existed,
even if respondent provided rebuttal evidence, there was a factual question that could only be
resolved at trial. Thus, it was inappropriate for the probate court to grant summary disposition.
Because petitioners in this case provided sufficient facts to invoke the presumption of
undue influence, the trial court erred in granting summary disposition on this issue. Id.
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D. DURESS
Duress requires a showing that the person was a victim of a wrongdoing or unlawful act
or thread and that the act or threat deprived the victim of her unfettered will. See Barnett v Int’l
Tennis Corp, 80 Mich App 396, 406; 263 NW2d 908 (1978). We find no evidence in the record
of an act or threat made against the decedent that deprived her of her will and petitioners do not
point us to any. Accordingly, we find that the probate court properly granted summary
disposition as to the allegation of duress.
E. INSANE DELUSIONS
“An insane delusion exists when a person persistently believes supposed facts which have
no real existence, and so believes such supposed facts against all evidence and probabilities and
without any foundation or reason for the belief, and conducts himself as if such facts actually
existed.” In re Solomon’s Estate, 334 Mich 17, 27; 53 NW2d 597 (1952) (internal quotation
marks and citation omitted).
Here, we agree with the probate court that Dickson’s testimony certainly raises the
question of whether the decedent was operating under insane delusions, as it indicates that the
decedent sometimes believed that certain of her relatives who were deceased were still living.
However, even assuming that the decedent was suffering from these delusions at the time the
will was executed, it would not change her disposition to respondent. Unlike the question of
testamentary capacity, where we are left to wonder whether the decedent knew what relatives she
had at the time of the execution, the question here was whether the decedent was conducting
herself as if such facts existed—i.e. the decedent believed that certain relatives who were
deceased were in fact alive. If decedent believed those relatives were alive, then her will simply
disinherited more relatives. Had the decedent believed that petitioners were deceased when, in
fact, they were not, there would be a claim. However, the fact that the decedent may have
believed she had more living relatives at the time of her execution of the will would not make
any difference in this case. Accordingly, the trial court properly granted summary disposition as
to the claim regarding insane delusions.3
F. FRAUD
The elements of fraud are: (1) that the charged party made a material
representations; (2) that it was false; (3) that when he or she made it he or she
knew it was false, or made it recklessly, without any knowledge of its truth and as
a positive assertion; (4) that he or she made it with the intention that it should be
acted upon by the other party; (5) that the other party acted in reliance upon it;
3
However, this conclusion does not preclude petitioners from presenting the evidence of these
alleged delusions in their case regarding whether the decedent had the proper testamentary
capacity.
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and (6) that the other party thereby suffered injury. [City of Novi v Robert Adell
Children’s Funded Trust, 473 Mich 242, 253 n 8; 701 NW2d 144 (2005).]
We agree with the probate court that petitioners have not satisfied these elements. Although
there is evidence that respondent made false representations to the probate court and potentially
his attorneys regarding the lack of any other persons of interest in the estate, these
representations were not made to petitioners. Additionally, there is no evidence that petitioners
have suffered injury from this misrepresentation. Petitioners were ultimately listed as interested
persons and are litigating whether the will was properly executed. Thus, they have suffered no
injury from respondent’s initial failure to include them. We can discern no other fraud claims
from petitioners’ pleadings and they have not argued any in their appellate brief. Accordingly,
the trial court properly dismissed petitioners’ fraud claim.
G. REMAINING CLAIMS
Because the probate court erroneously granted summary disposition, we need not address
petitioners’ alternative arguments regarding whether the successor probate judge erred in
denying their motion for reconsideration. Additionally, because petitioners have not addressed
the probate court’s estoppel ruling on appeal, it stands.
III. CONCLUSION
The probate court improperly granted summary disposition on whether the will was
properly executed, whether the decedent had the proper testamentary capacity, and whether there
was undue influence. Accordingly, we reverse the probate court’s grant of summary disposition
as to those issues, affirm in all other respects, and remand for additional proceedings consistent
with this opinion. No costs, neither party having prevailed in full. MCR 7.219(A). We do not
retain jurisdiction.
/s/ William B. Murphy
/s/ Patrick M. Meter
/s/ Douglas B. Shapiro
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