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STATE OF MICHIGAN 

COURT OF APPEALS 

MICHAEL PODOLAK, as Personal 

Representative of the Estate of Ilko Podolak, 

deceased, 

 Plaintiff-Appellant, 

UNPUBLISHED 

March 23, 2017 

v No. 330385 

Wayne Probate Court 

GREGORY AND LAURA PODOLAK, LC No. 14-799438-CZ 

 Defendant-Appellees, 

and 

PAUL PODOLAK, 

 Defendant. 

In re Estate of ILKO PODOLAK, deceased. 

MICHAEL PODOLAK, Personal Representative, 

 Appellant, 

v No. 331127 

Wayne Probate Court 

PAUL, GREGORY AND LAURA PODOLAK, LC No. 14-797335-DE 

 Appellees. 

Before: TALBOT, C.J., and MURRAY and BOONSTRA, JJ. 

PER CURIAM. 
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 In these consolidated appeals1 petitioner appeals by right the probate court’s order 

denying his petition to return estate assets and granting respondents’ motion for summary 

disposition.2 We affirm. 

I. PERTINENT FACTS AND PROCEDURAL HISTORY 

 The decedent, Ilko Podolak (known as Alex), died intestate in February 2014 at the age 

of 84. His wife, Dolores Podolak (Delores), had died in 1999. Alex was survived by three sons: 

Paul Podolak (Paul), petitioner and personal representative Michael Podolak (Mike), and 

respondent Gregory Podolak (Greg). 

 In early 1996, Alex, a Vietnam veteran, underwent surgery following a military injury, 

and was left totally blind in his right eye and nearly blind in his left eye (reporting in 1996 that 

he could only view “large objects” from that eye). After the surgery, Alex applied for and 

received Veteran’s Administration (VA) benefits and Social Security benefits. In May 1996, 

Alex and Dolores opened a joint bank account at Dearborn Federal Credit Union (DCFU). Greg 

was listed as the sole beneficiary on this account. The membership application for DCFU 

contained language indicating that the owners of this joint account, i.e. Alex and Dolores, agreed 

that the funds deposited into the account were owned by both of them jointly, with rights of 

survivorship. The Social Security benefits were deposited into a Comerica Bank account, while 

the VA benefits were deposited into the DCFU account. Greg testified at his deposition that he 

had an ATM card for the DCFU account, and that from 1996 to 2000 he would both deposit 

money into the account at his parents’ direction and take money out of the account (including for 

his own use). 

 Dolores died in late 1999. Fourteen days later, in early 2000, Alex and Greg signed a 

document at DCFU that included a Joint Share Account Agreement; it informed joint account 

owners that all funds on deposit in a joint account are owned by any of the joint owners, and that 

the credit union could release or pay any amount on deposit in the account to any owner. The 

document reflects the handwritten notations “Removed ‘Dolores’ per cc death cert & added son 

as joint” and “prime is legally blind.” The document did not list any beneficiaries. 

 The parties agree that from 2000 until Alex’s death in 2014, Greg paid Alex’s bills from 

the two accounts.3 They differ, however, with respect to the propriety of Greg’s use of funds in 

 

1

 See Estate of Podolak v Podolak; In re Estate of Podolak, unpublished order of the Court of 

Appeals, issued January 20, 2016 (Docket Nos. 330385, 331127). 

2

 The petitioner and personal representative filed both a civil case and an application for informal 

probate and petition to return estate assets; both cases ultimately were assigned to the same 

probate judge. 

3

 No record evidence exists regarding whether Greg was a joint owner of the Comerica account, 

as the probate court found, or was merely a payee on that account, as Mike argues on appeal. At 

oral argument below, Mike’s counsel stated that Mike would be willing to consider that all the 

funds from the Comerica Bank account were used to pay Alex’s bills and confined his argument 
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excess of those needed to pay Alex’s bills. Greg testified at his deposition that as early as 1996, 

when he was added as sole beneficiary to the DCFU account, it was his parents’ wish that he 

receive all the funds in that account upon their deaths, and that Alex reaffirmed that by making 

him a joint account owner of the DCFU account in 2000. Greg further testified that he 

understood his father’s wish to be that Mike and Paul would receive the family home and that he 

would receive the money remaining in the accounts. Greg stated that Alex was aware that Greg 

was taking money from the account for his own use and raised no objection. Greg stated that 

until 2013, Alex would sign his VA benefits check and Greg would either deposit the funds or 

cash the check. In the latter event, he would use some of the cash to pay Alex’s bills, would give 

Alex between one and two hundred dollars in cash, and would keep the rest. After 2013, the VA 

benefits were direct-deposited monthly into the DCFU account. 

 Mike testified at his deposition that he lived with Alex and Dolores (until her death), and 

then with Alex, from 1998 until Alex’s death. Mike stated that his wife Carol (whom he married 

in 2008) moved into the home in 2008 with her daughter, age 10 at the time of his deposition. 

Mike further testified that Paul moved into the home in 2010. Mike testified that he paid rent of 

$100 a month while Dolores was alive, but did not pay rent afterward. Mike stated that Alex 

“wasn’t that bad at first” and had “limited vision” for the first three or four years. He stated that 

he principally assisted Alex with cooking, cleaning up, and cutting the lawn during this time 

period. Mike stated that Greg was paying the bills from Alex’s account, and would buy 

groceries for the house, although Carol would have to supplement the groceries with food 

purchased with their own money throughout the month. Mike testified that Alex’s vision, as 

well as his hearing, began to worsen near the end of his life, specifically the last 4 years, and that 

he then required more care and supervision. In fact, Carol quit her job in January 2014 because 

Alex needed her assistance around the home. However, Mike testified that Alex had a “very 

good memory” and was never diagnosed with any mental deficiencies, dementia, or Alzheimer’s 

disease. Mike testified that Alex told his sons that “when he dies the money gets split up evenly 

three ways” and that “everyone [would] be well taken care of, the three of us.” Mike stated that 

he did not become aware, until after Alex’s death, that Greg was taking money from the DCFU 

account for his own use. 

 After Alex’s death and Mike’s appointment as personal representative of Alex’s estate, 

Mike filed suit, alleging embezzlement or conversion, breach of fiduciary duties, undue 

influence, and fraudulent concealment with respect to Greg’s use of funds in the DCFU and 

Comerica accounts. Specifically, the complaint alleged that between 2000 and 2014, 

respondents4

 improperly spent or retained for themselves over $400,000 of Alex’s Social 

Security and VA benefits, and that in doing so Greg exerted undue influence on Alex and 

breached his fiduciary duties to Alex. Mike also filed a petition and motion in the probate court 

for the return of estate assets and the appointment of a receiver. 

to the funds in the DCFU account. On appeal, Mike also makes no specific argument related to 

the Comerica Bank account. We therefore confine our review to the DCFU account. 

4

 Laura was alleged to have either been “directly involved” or “knowingly participated” in 

Greg’s withdrawal of the funds from the accounts at issue and in spending those funds for their 

personal benefit. 
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 The cases were consolidated as described above. Respondents moved for summary 

disposition pursuant to MCR 2.116(C)(8) and (10) and subsequently moved the probate court to 

dismiss Mike’s petition and motion. Respondents argued that Mike had failed to present any 

proof of undue influence, coercion, or fraud so as to invalidate Alex’s agreement to joint 

ownership of the accounts at issue, and that Mike’s claim was barred by both the joint account 

agreement signed by Alex and Greg and the statutory presumption found in MCL 487.703. At 

the motion hearing, Mike’s counsel confined his argument to the DCFU account as described 

above. 

 Following the hearing, the probate court issued an opinion and order granting 

respondents’ motion pursuant to MCR 2.116(C)(10) and dismissing Mike’s complaint. The 

probate court held that Mike had presented no evidence that Alex was unduly influenced, 

coerced, or misled into entering a joint account agreement with Greg, and rejected Mike’s 

argument that the joint account was a mere “account of convenience” or was created by fraud. 

Further, the probate court held that the unrebutted presumption of joint ownership found in 

MCL 487.703 indicated that Alex had intended that Greg have use of and access to the joint 

account as a matter of law, and further noted Alex’s lack of mental deficiencies or disease at the 

time of his death, as well as the fact that Alex did not have a durable power of attorney (DPOA) 

and had never had a conservator or guardian appointed on his behalf. The probate court also 

denied Mike’s petition and motion for return of estate assets, and dismissed Mike’s complaint. 

 These appeals followed. 

II. STANDARD OF REVIEW 

 We review de novo the probate court’s decision on respondents’ motion for summary 

disposition. Moser v Detroit, 284 Mich App 536, 538; 772 NW2d 823 (2009). Summary 

disposition is proper under MCR 2.116(C)(10) if “there is no genuine issue as to any material 

fact, and the moving party is entitled to judgment . . . as a matter of law.” “A genuine issue of 

material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, 

leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469 

Mich 177, 183; 665 NW2d 468 (2003). We consider the affidavits, pleadings, depositions, 

admissions, and other documentary evidence in the light most favorable to the nonmoving party. 

Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 29; 772 NW2d 801 (2009). All 

reasonable inferences are to be drawn in favor of the nonmovant, Dextrom v Wexford County, 

287 Mich App 406, 415; 789 NW2d 211 (2010). 

 We review de novo the probate court’s interpretation of statutory language. Slatterly v 

Malidol, 257 Mich App 242, 250-251; 668 NW2d 154 (2003). 

III. JOINT ACCOUNT 

 Mike argues that the trial court erred by failing to at least hold that a question of material 

fact existed regarding whether the DCFU account was an account of convenience rather than a 

true joint account, whether Greg breached his fiduciary duty to Alex, and whether Greg unduly 

influenced Alex. All of Mike’s arguments essentially boil down to whether he presented 
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sufficient evidence to overcome the statutory presumption found in MCL 487.703. We hold that 

he did not. 

 MCL 487.703 governs joint accounts and provides in relevant part: 

When a deposit shall be made, in any bank by any person in the name of such 

depositor or any other person, and in form to be paid to either or the survivor of 

them, such deposits thereupon and any additions thereto, made by either of such 

persons, upon the making thereof, shall become the property of such persons as 

joint tenants, and the same together with all interest thereon, shall be held for the 

exclusive use of the persons so named and may be paid to either during the 

lifetime of both or the survivor after the death of 1 of them . . . . 

* * * 

The making of the deposit in such form shall, in the absence of fraud or undue 

influence, be prima facie evidence, in any action or proceeding, to which either 

such banking institution or surviving depositor or depositors is a party, of the 

intention of such depositors to vest title to such deposit and the additions thereto 

in such survivor or survivors. [Emphases added.] 

To overcome the presumption of survivorship, a claimant must provide “reasonably clear and 

persuasive proof” of fraud or undue influence. See Lau v Lau, 304 Mich 218, 224; 7 NW2d 278 

(1943). 

 Further, MCL 490.56 provides that a credit union account held by 2 or more persons, 

whether jointly or otherwise, “which does not expressly provide that there is no right of 

survivorship,” is presumed to be a survivorship account; “sums on deposit in a survivorship 

account belong to the surviving party or parties as against the estate of the decedent.” Finally, 

MCL 490.58 provides that the presumption found in MCL 490.56 is “based upon inferences of 

the intention of parties to multiple-party accounts arising from the form of the account and the 

usual expectations of people using these accounts” and is “rebuttable by clear and convincing 

evidence of a different intention.” 

 In sum, Mike was required to provide the court with clear and convincing evidence that 

Alex, at the time he entered into to the joint account agreement with Greg, did not intend for 

Greg to have joint ownership of the funds to be deposited in the account, or provide at least 

reasonably clear and persuasive proof of fraud or undue influence. We conclude that Mike has 

not carried his burden. 

 With respect to evidence that Alex intended the account as an account of convenience to 

allow Greg to pay his bills, rather than a joint account, Mike can only point to statements from 

his own deposition indicating that Alex, at some unspecified time, had stated that he wanted his 

money split three ways and that everyone would be “well taken care of” when he passed away. 

This does not rise to the standard of clear and convincing evidence required to rebut the 

presumption found in MCL 490.58, especially in light of the fact that for 3 years before the 

creation of the joint account, Greg had been listed as the sole beneficiary on the DCFU account 
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and had an ATM card for the account, which supports the inference that Alex intended that Greg 

ultimately have the use and ownership of the funds in the account. See Kirilloff v Glinisty, 375 

Mich 586, 590; 134 NW2d 707 (1965) (holding that the inference that there was no error in the 

trial court’s holding that the evidence that the decedent was aware of the consequences of 

opening a joint account supported the inference that she meant the defendants to have title to the 

funds in the account, notwithstanding testimony that the decedent had stated she wanted her 

money divided amongst her children). 

 Additionally, Mike has presented no evidence that Greg exerted undue influence on Alex 

in early 2000 when the joint account was opened. When making a claim for undue influence, a 

claimant is required to show 

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 Estate of Karmey, 468 Mich 68, 75; 658 

NW2d 796 (2003), quoting Kar v Hogan, 399 Mich 529, 537; 257 NW2d 77 

(1976).] 

 While the ultimate burden of proof remains with the claimant, a presumption of undue 

influence arises if the claimant introduces 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 a transaction, and (3) the fiduciary had an 

opportunity to influence the grantor's decision in that transaction.” Kar, 399 Mich at 537. If 

such a presumption arises, it falls to the person denying undue influence to present some 

evidence in rebuttal in order to survive summary disposition. See id. at 542. 

 Here, the probate court found that Mike had not presented sufficient evidence of a 

confidential or fiduciary relationship between Greg and Alex at the time Greg was added to the 

joint account. We agree. Although it appears that Greg did assume responsibility for payment of 

Alex’s bills, there was no evidence presented that Alex and Greg had an existing fiduciary 

relationship at the time he was added to the joint account as a joint owner. And while a 

confidential relationship may exist when “a person enfeebled by poor health relies on another to 

conduct banking or other financial transactions,” see In re Swantek Estate, 172 Mich App 509, 

514; 432 NW2d 307 (1988), citing Van’t Hof v Jemison, 291 Mich 385, 393-394; 289 NW2d 186 

(1939), here there was no evidence presented that Alex, despite problems with his vision, was so 

enfeebled or in such poor health that he needed to rely on Greg to conduct his banking or 

financial affairs. In fact, Mike testified at his deposition that Alex did not need much help in the 

first 4 years after his surgery and began to get worse after 2003 or 2004, years after joint 

ownership of the DCFU account was established. Mike also testified that Alex had directed 

Greg to pay the taxes and other bills for the house. Further, Mike stated that in 2002 Alex had 

insisted that Greg reimburse Mike for the new hot water tank he had purchased for the house. 

Further, Mike also stated that, until nearly the end of his life, Alex went on his own to at least 

two different banks and conducted transactions there, and that he walked by himself to the gas 

station to purchase items and to return bottles. In sum, while Alex may have sought Greg’s 

assistance in paying his household bills, the record does not support the inference that Greg was 
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in a fiduciary or confidential relationship with Alex at the time he was added to the DCFU 

account so as to trigger the presumption of undue influence. Kar, 399 Mich at 537. Without that 

presumption, Mike has failed to present “reasonably clear and persuasive” evidence that Greg 

unduly influenced Alex into adding him as a joint owner of the DCFU account, Lau, 304 Mich at 

224; in fact, he stated that Alex was in possession of sound mental faculties until the end of his 

life and was never diagnosed with any mental deficiencies, Alzheimer’s Disease, or dementia; 

nor did he ever have a guardian, conservator, or DPOA. Additionally, the lack of evidence of a 

fiduciary relationship defeats Mike’s claim for the breach of duties arising from such a 

relationship. 

 As for fraud, we agree with the probate court that Mike did not plead fraudulent 

concealment with particularity. See MCR 2.112(B). Further, while Mike pleaded that 

respondents fraudulently concealed their use of Alex’s bank account, he has not pleaded that 

Greg was added to the joint account as a result of fraud or misrepresentation. Finally, everyone 

who was deposed in this matter testified to their awareness that Greg was paying Alex’s bills, 

and Mike testified to his awareness that Greg was paying the bills from Alex’s account. Mike 

therefore did not present reasonably clear and persuasive evidence of fraud so as to defeat the 

presumption of joint ownership and survivorship of the funds in the DCFU account. Lau, 304 

Mich at 224. 

 Finally, the VA medical records provided to the probate court by Mike do not refute our 

conclusions. While it does appear that in 1998 a VA employee requested that a Field Examiner 

explore whether Alex could manage his own funds, no such examination was ever performed. 

Further, while the VA records describe Alex as having been treated for depression and anxiety as 

well as “nervousness,” they also describe him as “alert and oriented” and contain no diagnosis 

that suggests that Alex was cognitively impaired or unable to understand the consequences of 

opening a joint account. And the handwritten notes of a social worker that were made before 

2000, to the extent they reference manipulation by family members, refer not to Greg but to Paul 

and Mike. The VA records do not aid Mike’s arguments. 

III. CHECKS NOT DEPOSITED INTO A JOINT ACCOUNT 

 Mike also argues that, at a minimum, there is a question of fact concerning whether Greg 

converted the funds from Alex’s VA benefit checks that he cashed but never deposited into the 

DCFU account. We disagree. No evidence was presented that Alex had directed Greg to deposit 

the entirety of the checks into the DCFU account. Greg testified that Alex was aware that he 

would sometimes cash the benefits check and place some funds into his own account or keep 

them as cash. Further, although no copies of the checks that were alleged to have been merely 

cashed rather than deposited into the DCFU account are found in the lower court record, Mike 

argues on appeal that Alex merely signed his name on the checks, and that this endorsement did 

not have the effect of endorsing the checks to Greg. In making this argument, Mike cites to 

MCL 440.3204(1), which governs the definitions of “endorsement” and “endorser” but does not 

in any event support Mike’s argument that a simple signature indicates an endorsement only for 

the purposes of deposit. And Mike’s argument is flatly contradicted by MCL 440.3205 (2), 

which provides that an endorsement that consists only of a signature is a “blank endorsement.” 

Such an endorsement renders the instrument “payable to bearer and may be negotiated by 

transfer of possession alone” absent further endorsement. Id. In other words, once Alex signed 
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the checks and gave them to Greg, they were endorsed as payable to Greg. Mike presented no 

evidence that Alex was induced to sign the checks by fraud or misrepresentation, bad faith, or 

other challenges to the validity of the endorsement. Mike’s argument concerning VA benefits 

checks cashed but not deposited by Greg therefore fails. 

 Affirmed. As the prevailing party, respondents may tax costs. MCR 7.219(A). 

/s/ Michael J. Talbot 

/s/ Christopher M. Murray 

/s/ Mark T. Boonstra