A frequent challenge to the execution of certain documents or instruments in civil court is that the grantor was “unduly influenced” to do so. In probate court, undue influence is often asserted when family members accuse other family members or actors of manipulating someone into creating an unfavorable will, revocable trust, property deed, durable power of attorney or contract. For example, a mother changes her last will and testament to leave her entire estate to one child (who was her primary caretaker), and the other disinherited children allege undue influence due to the opportunity for the son to manipulate his mother while in isolation.
“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.” Kar v Hogan, 399 Mich 529, 251 NW2d 77 (1976).
According to Civil Model Jury Instruction 170.44 for undue influence in will contests, “[i]t is not improper for a spouse, child, parent, relative, friend or housekeeper to advise, persuade, argue, flatter, solicit, entreat, implore [the decedent],… appeal to the decedent’s hopes, fears, prejudices, sense of justice, sense of duty, sense of gratitude and sense of pity,… or appeal to ties of friendship, affection or kinship…”.
Undue influence is defined by case law but not by statute. The standard of proof is very high by design, and the contestant of a will has the burden of establishing undue influence. MCL 700.3407(c). A document or instrument is presumed valid. The courts and the legislature intentionally make it difficult to defeat certain legal documents, especially a decedent’s will or revocable trust, with mere allegations alone.
However, the tables turn on the party advocating for the legal document if evidence is introduced establishing:
- The existence of a confidential or fiduciary relationship between the grantor and a fiduciary;
- The fiduciary benefits from a transaction, and;
- The fiduciary had an opportunity to influence the grantor’s decision in that transaction.
A fiduciary is someone under a duty to act for the benefit of someone else on certain legal matters, such as a legal guardian for a ward or a trustee for a trust beneficiary. If the person who stands to benefit from a grantor’s last will or trust is a fiduciary of the grantor, then there is a PRESUMPTION of undue influence against that fiduciary. For example, the presumption may arise when a client leaves a will in favor of his attorney, a patient leaves a will in favor of his doctor or a penitent leaves a will in favor of his clergyman. When the proponent of the will or trust has a presumption of undue influence thrust upon them, the propenent then has an obligation to rebut that presumption by producing some proof showing the grantor’s free will.
Typically, a marriage does not create a presumption of undue influence for a husband over a wife or vice versa. In re Karmey Estate, 468 Mich 68, 75; 658 NW2d 796 (2003). While a spouse certainly has “influence” over a spouse, it is difficult to say that such influence can be “undue” given the close relationship and the general commingling of property. However, recent case law has muddied the waters on the effect of marriage on the undue influence presumption.
In Estate of Arnold E. Mortimore, unpublished per curiam opinion of the Court of Appeals, issued May 17th, 2011 (Docket No. 297280), the appellate court determined that the probate court erred by not assigning a presumption of undue influence to an alleged spouse. Arnold Mortimore’s first wife died in 2007 and he subsequently began a relationship with another woman who became “intimately involved in all aspects of Arnold’s life”. This woman was a friend while the first wife was alive and she even assisted in the first wife’s funeral arrangements. They allegedly got married in late 2008, eight months before his death, with swirling questions and unclear evidence about the marriage being legally solemnized. He executed a last will and testament before his death leaving his estate to his new “wife”, much to the chagrin of his children that contested the will on undue influence grounds.
The probate court determined that there was no presumption of undue influence against the second wife regarding the will due to the Karmey standard regarding spouses. However, the court of appeals disagreed and determined that a fiduciary relationship certainly existed between the couple. The second wife managed all of Arnold’s finances even prior to the marriage, monitored his contact with loved ones by phone, and set up meetings with attorneys and notaries regarding revoking his trust and changing his will. Accordingly, the second wife clearly benefitted from this relationship due to the gains she acquired from his estate plans. As a result, the court of appeals determined that she should have a presumption of undue influence against her that she must overcome. She has a duty to produce evidence to rebut the presumption. Although this case is unpublished and does not have precedential value, this appellate decision has not yet been contradicted by subsequent case law.
Gaining the presumption of undue influence as the proponent of the will DOES NOT mean that the contestant is relieved of the burden of proving undue influence. Rather, it is a momentary burden shift where, once the contestant produces evidence establishing the presumption, the proponent must produce SOME evidence to rebut the presumption against them. If the court is satisfied that the presumption is rebutted, then the burden SHIFTS BACK to the contestant who must prove the existence of undue influence to the trier of fact (judge or jury).
What does this mean? If the contestant alleges undue influence and there is NO presumption, then the proponent of the will has no obligation to produce any evidence and the burden of persuasion falls solely on the contestant. If the contestant alleges undue influence and there IS a presumption, then the contestant must produce evidence to show undue influence AND the proponent must produce evidence to rebut the presumption against him or her. If the proponent fails to produce ANY evidence to rebut the presumption, then the contestant will prevail. If the proponent produces evidence equal to or greater that produced by the contestant, then the proponent will prevail. The probate court in Mortimore erred by confusing the concepts of proving undue influence and rebutting presumption.
Despite the potential presumptions that may be afforded by law, it is extremely difficult to overturn a will on undue influence and most challenges fail. Litigation regarding undue influence is costly and time-consuming because the evidence is almost always circumstantial. It often involves voluminous friends, family members and business associates testifying as to the relationship between the decedent and the “influencer” as well as to the belief to what the decedent’s wishes were. A personal representative has a DUTY to defend the will, meaning there is an obligation to respond to allegations of undue influence. Fortunately, a personal representative has a right to hire an attorney at the expense of the estate to assist them in his or her duties, up to and including challenges to the legitimacy of the will.
If you are contemplating a challenge to a will, or you are a personal representative needing to defend against such a challenge, then do not hesitate to contact the knowledgeable attorneys at Kershaw, Vititoe & Jedinak PLC for assistance with your probate matter.