IN RE LERG ESTATE
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID HANSON, Personal Representative for
the Estate of EDWARD E. LERG,
UNPUBLISHED
January 27, 2011
Petitioner-Appellant,
v
No. 293012
Clinton Probate Court
LC No. 08-026722-DE
THOMAS MCNAMARA, MICHAEL
MCNAMARA, and JOAN KLOTZ,
Respondents-Appellees.
Before: CAVANAGH, P.J., and HOEKSTRA and GLEICHER, JJ.
PER CURIAM.
Petitioner appeals as of right from a judgment denying admission of Edward Lerg’s April
19, 2006 will, based on findings that Lerg lacked testamentary capacity to execute the will and
was subject to the undue influence of petitioner in making the will. We reverse and remand.
On June 19, 2000, Lerg, as Settlor, executed a “Declaration of Trust,” naming his trust
the “Edward E. Lerg Trust,” and designating himself as Trustee and Joan Klotz as Successor
Trustee. The Lerg Trust provided that it was “the Settlor’s intent that, should he become
physically or mentally disabled, the Successor Trustee shall dispose of any and all Trust estate
assets for his benefit, with a view towards keeping the Settlor in his own personal residence so
long as medically advisable.” And the Lerg Trust included the following provision: “The Settlor
reserves the right to amend, modify, or revoke this Trust, in whole or in part.” Lerg’s primary
asset was a 40-acre parcel of land where he lived in Clinton County and, on February 7, 2002,
Lerg executed a quit claim deed conveying this property from himself, as a single man, to
himself as Trustee of the “Edward E. Lerg Trust, a revocable living Trust . . . .”
In 2003, while in the hospital after having fallen, Lerg was diagnosed with Alzheimer’s
dementia. Shortly thereafter, Klotz was appointed as Lerg’s guardian and Klotz had Lerg
admitted into a nursing home. Although Lerg was moved to several different nursing homes, it
was undisputed that Lerg hated living in any nursing home and compared it repeatedly to living
in a prison. It was also undisputed that Lerg repeatedly attempted to return to living on his own
property through efforts that included seeking to have his trust revised and the guardianship
terminated. The Sixty Plus Elder Law Clinic, a non-profit clinic sponsored by The Thomas M.
Cooley Law School, represented Lerg at various guardianship-related proceedings. Although an
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order entered on May 12, 2004, following Lerg’s petition for termination of the guardianship,
provided that Lerg was to be placed in “the least restrictive environment” possible, Lerg
remained in a nursing home. That is, all of Lerg’s efforts to return home were unsuccessful. In
2005, Lerg’s long-time friend, and petitioner in this case, David Hanson, was appointed as
Lerg’s co-guardian. Petitioner’s efforts to return Lerg to his own property, after arranging to
have a modular home placed, were thwarted by Klotz and, thus, were unsuccessful.
The Sixty Plus Elder Law Clinic continued to assist Lerg who was dissatisfied with his
predicament. At Lerg’s request, the Sixty Plus Elder Law Clinic drafted a will for Lerg which
purported to “revoke any previous Will, Codicil, and Trust of mine.” The will also provided: “I
created the ‘Edward E. Lerg Trust’ in June of 2000, but have revoked that Trust and this Will
should control how my estate should be distributed.” Petitioner was named the beneficiary under
the will, and Klotz as well as her children were specifically disinherited. The will was signed on
April 19, 2006. Lerg died on March 10, 2008.
Following Lerg’s death, petitioner sought to have Lerg’s will probated. Klotz, as well as
Thomas McNamara and Michael McNamara, beneficiaries under the Edward E. Lerg Trust,
objected to the admission of the will, arguing that Lerg lacked testamentary capacity to execute
the will and was induced to do so by the undue influence of petitioner. Following a hearing on
the petition, the probate court rendered its opinion and order denying admission of Lerg’s will.
The court held that Lerg lacked the requisite level of testamentary capacity to execute the will on
April 19, 2006, and was subjected to undue influence exerted upon him by his co-guardian,
petitioner. This appeal followed.
Petitioner first argues that respondents failed to rebut the presumption that Lerg
possessed the requisite testamentary capacity to execute his will; therefore, the probate court’s
decision to deny admission of Lerg’s will on this ground was clearly erroneous and must be
reversed. We agree.
Pursuant to MCL 600.866(1), “[a]ll appeals from the probate court shall be on a written
transcript of the record made in the probate court or on a record settled and agreed to by the
parties and approved by the court. An appeal shall not be tried de novo.” “The standard of
review on appeal in cases where a probate court sits without a jury is whether the court’s
findings are clearly erroneous.” In re Bennett Estate, 255 Mich App 545, 549; 662 NW2d 772
(2003). “A finding is clearly erroneous when a 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.” Id.
This Court defers to the probate court on matters of credibility and gives broad deference to its
findings because of its unique vantage point. In re Erickson Estate, 202 Mich App 329, 331; 508
NW2d 181 (1993).
MCL 700.2501 provides as follows:
(1) An individual 18 years of age or older who has sufficient mental capacity
may make a will.
(2) An individual has sufficient mental capacity to make a will if all of the
following requirements are met:
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(a) The individual has the ability to understand that he or she is providing for the
disposition of his or her property after death.
(b) The individual has the ability to know the nature and extent of his or her
property.
(c) The individual knows the natural objects of his or her bounty.
(d) The individual has the ability to understand in a reasonable manner the
general nature and effect of his or her act in signing the will.
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). That is, the testator’s capacity to make a will is presumed. See, also, In re
Skoog’s Estate, 373 Mich 27, 30; 127 NW2d 888 (1964). And whether a testator had the
requisite testamentary capacity “is judged as of the time of the execution of the instrument, and
not before or after, except as the condition before or after is competently related to the time of
execution.” In re Powers’ Estate, 375 Mich 150, 158; 134 NW2d 148 (1965).
The requirements of testamentary capacity were explained in In re Sprenger’s Estate, 337
Mich 514, 521; 60 NW2d 436 (1953), as follows:
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.
Illiteracy or lack of education has little, if any, bearing upon mental
capacity to make a will and the appointment of a guardian to protect the property
of a person does not constitute probative evidence of mental incompetency. Nor
should the lack of wisdom in the disposition of the property nor the fairness of the
provisions of the will influence the court in a determination of mental
competency. Weakness of mind and forgetfulness are likewise insufficient of
themselves to invalidate a will. [Citations omitted.]
Here, the probate court set forth its findings of fact in support of its decision to deny
admission of Lerg’s will. The probate court noted that Lerg had a guardian. The court also
noted that Lerg was diagnosed with Alzheimer’s disease and that, according to the testimony of
Dr. William Beecroft, such disease is progressively degenerative. The court indicated that Dr.
Beecroft, respondents’ witness and an expert in psychiatry, testified that he evaluated Lerg one
time in May of 2005 and found that Lerg was irritable, short tempered, did not want to talk, and
showed poor insight as well as judgment. Dr. Beecroft concluded that Lerg was modestly to
severely demented and was suspicious of people. The court further noted that Dr. Beecroft again
evaluated Lerg in 2007 and Lerg’s mental condition had further declined.
We conclude that these findings of fact have very little probative value and do not
support a conclusion that Lerg lacked testamentary capacity at the time he executed his will.
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That Lerg had a guardian “does not constitute probative evidence of mental incompetency.” In
re Sprenger’s Estate, 337 Mich at 521. A diagnosis of Alzheimer’s disease, alone, is not
dispositive of testamentary capacity. And Dr. Beecroft evaluated Lerg on one occasion, May 4,
2005, about a year before Lerg executed his will. His findings after this one visit—that Lerg was
irritable, short tempered, did not want to talk, showed poor insight and judgment, and was
suspicious of people—does not lead to the conclusion that Lerg lacked testamentary capacity, as
set forth in MCL 700.2501, at the time he executed his will on April 19, 2006.
The probate court’s decision also referenced the testimony of respondent Thomas
McNamara, who testified that Lerg was very angry at Klotz, blamed her for being in the nursing
home, and believed that she had all of his money. These findings of fact have very little, if any,
probative value and do not support a conclusion that Lerg lacked testamentary capacity at the
time he executed his will. Neither “the lack of wisdom in the disposition of the property nor the
fairness of the provisions of the will” should influence the court in a determination of mental
competency. In re Sprenger’s Estate, 337 Mich at 521. However, this testimony does explain
why Lerg would choose to specifically disinherit Klotz in his will. It appears that Lerg believed
that Klotz took advantage of the fact that she was named his successor trustee and then did not
act in accordance with the desires he expressed in his trust.
In support of its conclusion that Lerg lacked testamentary capacity, the probate court also
relied on the testimony of respondent Klotz who testified that, on occasion, when Klotz visited
Lerg in the nursing home, Lerg would ask for or about relatives who had passed away years
earlier. On other occasions, Klotz testified, Lerg did not recognize her or other people.
However, we have reviewed the testimony of Klotz and Klotz did not testify with any specificity
as to when precisely these alleged events of confusion occurred. Lerg was in a nursing home
from 2003 until his death in 2008. There is no way to determine from Klotz’s testimony as to
whether Lerg was confused with regard to his property or the natural objects of his bounty in
April of 2006 when he executed his will. For example, Klotz was asked by her attorney whether
she recalled “one visit when you – when you arrived to see Mr. Lerg that he was upset, he was
crying?” Klotz responded in the affirmative and testified that Lerg wanted to see his mother who
was dead. However, there was no time reference other than “one visit.” That visit could have
been any time, including in 2007 or 2008. There was also no time reference with regard to Lerg
purportedly asking Klotz about his brothers and his father, who also had passed away. Again,
the questions posed to Klotz were whether she recalled conversations she had with Lerg at any
time. However, at the time he made his will, Lerg did not name any of these deceased relatives
as his beneficiaries; therefore, it appears that he knew they were deceased at that time.
Accordingly, the probate court’s findings with regard to Klotz’s testimony were of little
probative value and did not support a conclusion that Lerg lacked testamentary capacity at the
time he executed his will.
In reaching its decision, the probate court also considered the testimony offered by
petitioner’s witnesses. However, respondents had the burden of establishing lack of testamentary
capacity. See MCL 700.3407(1)(c). In that regard, respondents offered the witness testimony of
Dr. Beecroft, Thomas McNamara, and Klotz. For the reasons set forth above, their testimony
provided very little, if any, evidentiary support for respondents’ claim that on April 19, 2006,
when Lerg signed his will, he did not meet the requirements of MCL 700.2501(2). Respondents
failed to carry their burden and failed to rebut the presumption of capacity; thus, review of
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petitioner’s evidence was unnecessary. See MCL 700.3407(1)(c); In re Shattuck’s Estate, 324
Mich 568, 573; 37 NW2d 555 (1949). Accordingly, the probate court clearly erred when it
denied admission of Lerg’s will on the ground that he lacked testamentary capacity because the
holding was not supported by the evidence.1
Next, petitioner argues that respondents failed to establish that Lerg’s will was the
product of undue influence exerted by petitioner. After review of the probate court’s findings
under a clear error standard of review as set forth above, we agree. See In re Bennett Estate, 255
Mich App at 549.
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. Motive, opportunity, or even
ability to control, in the absence of affirmative evidence that it was exercised, are
not sufficient. [In re Karmey Estate, 468 Mich 68, 75; 658 NW2d 796 (2003),
quoting Kar v Hogan, 399 Mich 529, 537; 251 NW2d 77 (1976).]
However, a presumption of undue influence arises when: (1) there exists a confidential or
fiduciary relationship between the grantor and a fiduciary, (2) the fiduciary benefits from a
transaction, and (3) the fiduciary had an opportunity to influence the grantor’s decision in that
transaction. In re Karmey Estate, 468 Mich at 73, quoting Kar, 399 Mich at 537.
In this case, petitioner was Lerg’s co-guardian thus a fiduciary relationship between
petitioner and Lerg existed. See MCL 700.1104(e). Petitioner, if he survived Lerg, was also the
sole beneficiary of Lerg’s will. Petitioner, however, argues that he did not have the opportunity
to influence Lerg’s decisions regarding the will because he did not know Lerg was creating a
will. But the evidence of record indicates that petitioner initially contacted the Sixty Plus Elder
Law Clinic on Lerg’s behalf, participated in many of the Clinic’s meetings, and drove Lerg to the
Clinic’s office the day Lerg executed his will. Thus, we agree with the probate court’s
conclusion that a presumption of undue influence existed and petitioner was required to present
sufficient evidence to rebut the presumption. However, the burden of persuasion remained with
respondents. In re Peterson Estate, 193 Mich App 257, 260; 483 NW2d 624 (1991), quoting
Kar, 399 Mich at 541-542.
After concluding that there was a presumption of undue influence, the probate court then
turned to the question whether petitioner rebutted the presumption with substantial evidence. In
this regard the probate court held:
1
We note the probate court’s concern that Lerg did not have the mental capacity to create a
different trust but such capacity is not dispositive on the issue whether he possessed the mental
capacity to make a will. MCL 700.2501. And, according to the “Edward E. Lerg Trust,” Lerg—
the Settlor—retained the unqualified power and right to revoke his trust. See MCL 700.7103(h).
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I know Mr. Hanson has testified he did not believe he exerted any undue
influence, that he only helped facilitate contact with the attorneys and assist Mr.
Lerg at those meetings because he was hard of hearing; however, he -- he did
participate in the meetings -- some of the meetings revoking the trust and creating
the Will which disinherited Klotz and named him sole beneficiary. He clearly had
a dislike or has a dislike for Ms. Klotz himself, during his testimony there were
several references but the one that sticks out most in my mind is when he -- one of
the first times he acknowledges Ms. Klotz he referred to her as Mr. Lerg’s socalled niece. He was working with attorneys who did not like Ms. Klotz, he knew
Lerg was angry at Klotz for not letting him go back and live on his property and
told Lerg he would do whatever he wanted him to do. He appealed to his anger
and fears which is exactly what undue influence involves. He did overcome -- or
that influence did overcome, I believe, Mr. Lerg’s volition because the doctor
indicated he was suspicious and susceptible and vulnerable. He was in a poor
mental state which even Mr. Hanson acknowledged, he had memory impairment,
he was dependent on others, he was basing his actions on information that was not
accurate and no -- Mr. Hanson did not correct that.
So based on the foregoing I feel that the presumption of undue influence was not
rebutted, that there was evidence of undue influence and so the admission of the
Will dated April 19, 2006 is denied.
Thus the probate court based its holding on the following purported findings of fact: (1)
petitioner participated in meetings involving the trust and will, (2) petitioner disliked Klotz, (3)
petitioner “was working with attorneys who did not like Ms. Klotz,” (4) petitioner knew Lerg
was angry at Klotz “for not letting him go back and live on his property and told Lerg he would
do whatever he wanted him to do,” and (5) Lerg was basing his actions on information that was
not accurate and petitioner “did not correct that.” It is clearly apparent from the probate court’s
holding that it wholly failed to consider the evidence actually presented by petitioner to rebut the
presumption of undue influence.
In brief, petitioner’s witness, Gary Bauer, testified that, when Lerg signed his will, no one
other than people from the Sixty Plus Elder Law Clinic were in the room. Bauer also testified
that he “had absolutely no impression that [Lerg] was there doing anything that he didn’t want to
do . . . .” Petitioner’s witness Tiffany Ruttkofsky, who was involved in drafting Lerg’s will,
testified that she met with Lerg several times at the nursing home and Lerg always knew who she
was, was always able to speak to her, and was not confused. Lerg spoke repeatedly about his
property and how “he just wanted to go home.” Lerg spoke to Ruttkofsky about Klotz and was
very upset with Klotz. Lerg “was very very very adamant that he wanted the property not to go
to Ms. Klotz or any of her children.” Ruttkofsky testified that she would meet with Lerg on
many occasions unannounced and outside of petitioner’s presence to make sure Lerg was not
being coached or being told what to tell her and to make sure “he wasn’t changing his story.”
Ruttkofsky further testified that “every time we met him that’s all he wanted to talk about is
make sure my property is protected, you know, what can you do to make sure that, you know,
my property goes where I want it to -- where I want it to go, sorry, that was his focus. . . . that’s
all he really wanted to talk about.” Petitioner’s witness Chris Yokey, who witnessed Lerg sign
the will, testified that he was confident that Lerg was not under an undue influence with regard to
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the will. This uncontroverted evidence, which was not considered by the probate court, clearly
rebutted the presumption of undue influence.
And the probate court’s findings of fact do not tend to establish that petitioner exerted
undue influence on Lerg with regard to the making of his will. That is, none of the findings by
the probate court demonstrate that Lerg was subjected to “threats, misrepresentation, undue
flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free
agency and impel” Lerg to act against his inclination and free will in favor of petitioner. See In
re Karmey Estate, 468 Mich at 75. More particularly, even if petitioner did participate in
meetings involving the trust and will, opportunity alone without other affirmative evidence is not
sufficient to establish undue influence. See id. Further, that petitioner and Lerg’s attorneys liked
or disliked Klotz is of no probative value on the issue whether petitioner exerted undue influence
on Lerg. Moreover petitioner’s awareness of Lerg’s feelings toward Klotz and purported offer to
“do whatever [Lerg] wanted him to do” do not tend to establish a claim of undue influence with
regard to Lerg creating his will. And finally, that petitioner did not “correct” Lerg’s alleged
inaccurate knowledge of whatever sort is of no probative value on the issue of undue influence.
We conclude that petitioner presented substantial evidence that was sufficient to rebut the
presumption of undue influence. Further, respondents failed to carry their burden of proving
their claim of undue influence. See In re Peterson Estate, 193 Mich App at 260. There was no
evidence, direct or circumstantial, that Lerg was subjected to any threats, misrepresentation,
undue flattery, fraud, or coercion. Because the holding was not supported by the evidence, the
probate court clearly erred when it denied admission of Lerg’s will on the ground that it was the
product of undue influence exerted by petitioner. In light of our resolution of these issues we
need not consider petitioner’s evidentiary issue on appeal.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Mark J. Cavanagh
/s/ Joel P. Hoekstra
/s/ Elizabeth L. Gleicher
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