IN RE ESTATE OF DONNA MAE KURRLE
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of the Estate of DONNA MAE
KURRLE, Deceased.
JEFFREY S. KAMIDOI, Personal Representative
of the Estate of DONNA MAE KURRLE,
Deceased,
UNPUBLISHED
March 31, 2011
Petitioner-Appellee,
v
No. 295841
Genesee Probate Court
LC No. 09-185038-DE
BRIAN KAMIDOI,
Respondent-Appellant.
Before: CAVANAGH, P.J., and JANSEN and SERVITTO, JJ.
PER CURIAM.
Respondent appeals by right the probate court’s order setting aside a quitclaim deed and
corresponding will executed by his mother, the decedent, on November 21, 2008. The executed
documents purported to transfer the decedent’s home and the entirety of her estate to respondent,
effectively disinheriting the decedent’s other two sons. Petitioner, one of the decedent’s other
sons, filed a petition to set aside the documents, in part, on the ground of undue influence. We
affirm.
We review the probate court’s factual findings for clear error, and its conclusions of law
de novo. In re Kostin Estate, 278 Mich App 47, 53; 748 NW2d 583 (2008). “Clear error exists
when the reviewing court is left with a definite and firm conviction that a mistake has been
made.” Massey v Mandell, 462 Mich 375, 379; 614 NW2d 70 (2000).
Respondent first challenges the probate court’s finding that he, as the decedent’s son,
tenant, and joint account holder, had a fiduciary relationship with the decedent. Respondent
correctly notes that a parent-child relationship, in and of itself, does not establish a fiduciary
relationship or its corresponding presumption of undue influence. Mannausa v Mannausa, 370
Mich 180, 184; 121 NW2d 423 (1963). “In cases involving conveyances from parent to child
there is a rebuttable presumption of undue influence only where a fiduciary relationship is found
to exist.” Id. In general, “[a] fiduciary relationship . . . exists when there is a reposing of faith,
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confidence, and trust and the placing of reliance by one on the judgment and advice of another.”
Farm Credit Services, PCA v Weldon, 232 Mich App 662, 680; 591 NW2d 438 (1998).
In support of his position that no fiduciary relationship existed, respondent relies heavily
on Salvner v Salvner, 349 Mich 375, 383-384; 84 NW2d 871 (1957), in which the plaintiff
sought to have set aside certain conveyances to his children, the defendants, on the basis of
undue influence. Our Supreme Court held in relevant part that no fiduciary relationship existed
between the plaintiff and the defendants even though the defendants “unquestionably did many
things to assist their father, a perfectly natural course of conduct in view of his physical
condition.” Id. at 384. Instead, the critical issue in that case was whether the plaintiff was
governed by the defendants’ advice or dependent on them to make decisions. Id. According to
the Salvner Court, the plaintiff was not so governed; he capably made decisions on his own
behalf and refused to act against his own inclinations. Id. Accordingly, no fiduciary relationship
existed because the defendants’ assistance “amounted to no more than would be prompted
normally by the existing relationship.” Id.
We note that the evidence tending to indicate the existence of a fiduciary relationship in
the present case extends far beyond a child’s friendly assistance to a parent. Unlike in Salvner,
the evidence in this case strongly suggests that the decedent could not make sound decisions at
the time that she executed the quitclaim deed and corresponding will, and that there existed a
reposing of faith, confidence, and trust in respondent such that the decedent relied on his
judgment and advice.
The decedent made respondent her joint bank account holder, trusting him to make
financial decisions on her behalf should she become unable. Respondent also resided with the
decedent, indicating a certain level of trust, and the decedent relied on respondent’s presence so
that she would not be alone. Moreover, although not apparently taken into consideration by the
probate court, we note that the authority attendant a power of attorney creates a fiduciary
relationship between the agent and the principal. In re Estate of Susser, 254 Mich App 232, 236;
657 NW2d 147 (2002). As the holder of the decedent’s financial power of attorney, respondent
agreed to act only for the decedent’s benefit, and a fiduciary relationship arose as a matter of
law. Id. The probate court did not err by determining that a fiduciary relationship existed
between respondent and the decedent in this case.
As our Supreme Court explained in Kar v Hogan, 399 Mich 529, 537; 251 NW2d 77
(1976), the existence of a fiduciary relationship is only the first element necessary to give rise to
a presumption of undue influence:
The presumption of undue influence is brought to life upon the
introduction of evidence which would establish (1) the existence of a confidential
or fiduciary relationship between the grantor and a fiduciary, (2) the fiduciary or
an interest which he represents benefits from a transaction, and (3) the fiduciary
had an opportunity to influence the grantor’s decision in that transaction.
As indicated previously, the probate court properly determined that there existed a fiduciary
relationship between the decedent and respondent in this matter. In addition, although not
contested on appeal, we note that the other two elements are also established in this case. First,
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respondent clearly benefited from the transactions at issue, which transferred the decedent’s
home and the entirety of her estate to him, effectively disinheriting the decedent’s other two
sons. Respondent also had an opportunity to influence the decedent’s decision to execute the
disputed documents. Despite the decedent’s compromised mental state, respondent admits that
he obtained a notary and a witness and stood by as the decedent, suffering from confusion,
transferred her home and the entirety of her estate to him. In addition, respondent had resided
with the decedent for more than 13 years preceding her death. Based on the totality of the
circumstances, we hold that sufficient facts existed to give rise to a rebuttable presumption of
undue influence, and the probate court did not clearly err in this regard.
The parties also dispute the appropriate burdens of proof in this case. Citing Kar, 399
Mich at 542, respondent argues that the presumption of undue influence shifts only the burden of
production to the proponent of the contested transaction, leaving the ultimate burden of
persuasion at all times with the contestant. We agree with this characterization, but wish to
emphasize that “the plaintiff will always satisfy the burden of persuasion when the defendant
fails to offer sufficient rebuttal evidence.” Id. The question, then, is whether respondent
presented sufficient rebuttal evidence.
The establishment of a presumption of undue influence “creates a ‘mandatory inference’
of undue influence, shifting the burden of going forward with contrary evidence onto the person
contesting the claim of undue influence.” In re Mikeska Estate, 140 Mich App 116, 121; 362
NW2d 906 (1985). “However, the burden of persuasion remains with the party asserting [undue
influence]. If the defending party fails to present evidence to rebut the presumption, the
proponent has satisfied the burden of persuasion.” Id.
Petitioner argues that, to overcome the presumption of undue influence, respondent was
required to prove that he (1) was not a fiduciary, (2) did not benefit from the transaction, or (3)
did not have an opportunity to influence the decedent’s decision in the transactions. In essence,
petitioner argues that the only way to rebut the presumption of undue influence is to show that
the presumption has not arisen in the first instance. But petitioner misinterprets the law of
presumptions. A presumption is a fact that is presumed true if certain other facts are first
established. See Black’s Law Dictionary (7th ed) (defining the term “presumption”); see also
Gadigian v City of Taylor, 282 Mich App 179, 186-187; 774 NW2d 352 (2008), vacated on other
grounds 486 Mich 869 (2010). To rebut a presumption, the party against whom the presumption
applies must introduce evidence that the presumed fact is false—not that the facts forming the
basis of the presumption are false. Thus, we must determine whether respondent offered
sufficient evidence to overcome the presumed fact of undue influence.
As stated in Kouri v Fassone, 370 Mich 223, 233; 121 NW2d 432 (1963):
[I]t is not possible to formulate a single definition embracing all forms of
undue influence. The law is settled that we view each case largely upon its own
circumstances. Particularly in search of undue influence, we look at the whole
spectrum of circumstances, not at [one] facet. The ultimate question is whether
the disposition was voluntary.
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Another useful definition is provided in In re Estate of Willey, 9 Mich App 245, 255; 156 NW2d
631 (1967):
Undue influence is the overpowering of the volition of the testator by
another person whereby what purports to be the testator’s will is in reality the will
of the other person. While there need be no violence or threat of physical force,
there must be unreasonable pressure upon the mind of the testator, amounting to
psychological or moral coercion, compulsion, or constraint, so great that his free
agency is destroyed and the volition of the person applying the pressure is
substituted. To be actionable, the unreasonable and improper pressure must result
in a will which the testator would not otherwise have made. Such a testament
does not represent the testator’s true will at all, but, in reality, represents the will
of the person who influenced him. [Citations omitted.]
To support his argument that the presumption of undue influence has been overcome in
this case, respondent simply argues that there is no evidence that he exerted pressure upon the
decedent through psychological or moral coercion, compulsion, or constraint such that she
lacked free will. However, the mere absence of evidence supporting a presumed fact does not
rebut that fact. Instead, rebuttal evidence requires some affirmative showing. Rather than
merely assert a lack of evidence of undue influence, respondent was required to produce
affirmative evidence proving the presumed fact to be false. See Kar, 399 Mich at 542. Because
defendant offered no proof in this regard, petitioner carried his ultimate burden of persuasion on
the issue of undue influence as a matter of law, id., and the “‘mandatory inference’ of undue
influence” remained intact, Mikeska Estate, 140 Mich App at 121.
Respondent’s failure to rebut the presumption of undue influence aside, the evidence
presented at trial fully supports the probate court’s conclusion that the executed documents were
the product of undue influence. The testimony suggested that respondent purposely concealed
the execution of the documents from his family members and thereafter entered into an
agreement to keep the executed documents a secret. Numerous witnesses testified regarding
their belief that the executed documents were the result of respondent’s manipulation of the
decedent, and respondent’s apparent remorse—hanging his head and stating, “it’s too late
now”—tended to support this testimony. The evidence plainly established that, rather than
desiring to transfer all of her property to respondent, the decedent wished to divide her estate
equally among her three sons. We must defer to the probate court’s special opportunity to assess
the credibility of the witnesses who appeared before it. In re Miller, 433 Mich 331, 337; 445
NW2d 161 (1989); see also MCR 2.613(C).
The probate court did not clearly err by finding that a fiduciary relationship existed
between respondent and the decedent. Nor did the probate court err by determining that a
presumption of undue influence arose on the facts of this case or that respondent failed to present
sufficient rebuttal evidence. Given the “‘mandatory inference’ of undue influence” that arose
here, Mikeska Estate, 140 Mich App at 121, we cannot say that the probate court erred by setting
aside the quitclaim deed and corresponding will dated November 21, 2008, on the ground that
they were the product of undue influence.
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Affirmed. As the prevailing party, petitioner may tax costs pursuant to MCR 7.219.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Deborah A. Servitto
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