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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

In re JOHN STIRLING WHITE TRUST.

JAMES WHITE, BRUCE WHITE, JEFF WHITE,

and DOUG WHITE,

Petitioners

- Appellants, UNPUBLISHED

September 13, 2018

v No. 338008

Oakland Probate Court

DAVID WHITE and THOMAS BRENNAN

FRASER, LC No. 2015

- 365903

- TV

Respondents

- Appellee s.

In re ESTATE OF JOHN STIRLING WHITE.

JAMES WHITE, BRUCE WHITE, JEFF WHITE,

and DOUG WHITE,

Petitioners

- Appellants,

v No. 338009

Oakland Probate Court

DAVID WHITE and THOMAS BRENNAN

FRASER, LC No. 2014

- 360814

- DA

Respondents

- Appellee s.

Before: S WARTZLE

, P .J., and J ANSEN and O’B RIEN , JJ.

P ER C URIAM

.

In Docket Nos. 338008 and 338009, petitioner s , Jeff White

, James Wh ite

, Bruce White

, and Doug White

, appeal as of right two orders granting summary disposition to respondents,

David White an d Thomas Brennan Fraser , regarding the petitions filed by petitioners to set aside- 2

- the will of their father, John Stirling Wh ite (Decedent), as well as the John St irling White Trust.

We reverse and remand for further proceedings.

This case arises f rom challenges by petitioners to D e cedent’s amended will and trust

, which left a majority of Decedent’s estate to his oldest son, D avid . The Decedent’s original will

and trust , in 2004, devised Decedent’s estate in a n equal fashion to all five sons

. Decedent’s

assets were John Stirling White, LLC, which owned a commercial building in Farmington,

Michigan, called “the Winery,” and a manufactured home. Pursuant to the 2004 trust, the

Winery would be distributed equ ally to David, James, and Bruce, the three sons who managed

the Winery, the manufactured home would be distributed to David, and all other real and

personal property would b e distributed equally between the five sons. In 2012, a contentious

divide grew between the family, with petitioners on one side, and D ecedent and David on the

other. Eventually, Adult Protective Services filed a petition for conservatorship asserting th at

Decedent was unable to properly manage his property and business affairs due to a mental

deficiency. In February 2013 , following a hearing, the probate court denied the petition for

conservatorship and appointed David as co

- trustee of the trust. Not t oo l ong thereafter, in March

2013, D ecedent executed an amended will and trust (2013 Amendment). The 2013 Amendment

awarded 80% of Decedent’s estate to David , and petitioners were each awarded 5%.

Decedent died on May 3, 2014. Following Decedent’s dea th, petitioners filed petitions to

set aside the 2013 Amendment based on undue influence and lack of tes tamentary capacity.

Respondent s moved for summary disposition of the petitions on the ground that, despite

Decedent’ s diagnosis in 2012 of mild cognitive impairment, he was able to satisfy the standard

for testamentary capacity at the time he decided to amend his estate plan and award most of the

estate to David. The probate court agreed with respondents that, despite the Decedent’ s impairment, the evidence offered supported a finding that he possessed testamentary capacity.

The probate court also granted summary disposition for respondents on petitioners claim of

undue influence, ruling that there was no genuine issue of material fact to support that theory,

MCR 2.116(C)(10). Specifically, the court ruled that petitioners did not produce any affirmative

evidence that David actually exercised undue influence. The court reasoned that David merely

had the opportunity to put false thoughts into Decedent’s head and that opportunity alone is not

sufficient to prove undue influence.

The probate court also rejected applying the presumption of undue influence.

Specifically, the probate court found that there was no evidence of a fiduciary relationship

between Decedent and David at the time Decedent first expressed his desire to amend his estate

plan. The probate court found that the evidence showed that Decedent wanted to make the 2013

Amendment and award everything to David as early as April 2012

. The probate court therefore

found that any confidential or fiduciary relationship between David and Decedent that was

established after this time was not indicative of undue influence

. The probate found that denying

the motion fo r summary disposition would allow this case to proceed to the jury based only on

speculation.

On appeal, petitioners argue that the probate court erred in granting summary disposition

under MCR 2.116(C)(10) based on the determination that no genuine iss ues of material fact

existed pertaining to undue influence of Decedent’s 2013 Amendment . We agree

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- This Court reviews a motion for summary disposition de novo. Gorman v American

Honda Motor Co, Inc , 302 Mich App 113, 115; 839 NW2d 223 (2013). A motion for summary

disposition under MCR 2.116(C)(10) challenges the factual sufficiency of a plaintiff’s claim. Id

. at 115. The trial court considers the evidence in the light most favorable to the nonmoving party.

Id . Summary disposition is prop er un der MCR 2.116(C)(10) if “ there is no genuine issue

regarding any material fact and the moving party is entitled t o judgment as a matter of law. ” Id

. at 116 (citation and quotation marks omitted). There is a genuine issue of material fact “ when

the record , giving the benefit of reasonable doubt to the opposing party, leaves open an issue

upon which r easonable minds might differ.” Id

. (citation and quotation marks omitted). The

trial court in deciding the motion must view the substantively admissible evi dence submitted up

to the time of the motion in a light most favorable to the party opposing the motion. Maiden v

Rozwood

, 461 Mich 109, 120

- 121; 597 NW2d 817 (1999).

To establish direct evidence of undue influence:

[It] must be shown that the grantor was subjected to threats, misrepresentation,

undue flattery, fraud, or physical or moral coercion sufficient to overcome

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 , 399 Mich at

537.]

A presumption of undue influence arises when there is evidence of (1) a confidential or fiduciary

relationship between the grantor and a fiduciary, (2) the fiduciary or an interest that he represents

benefits from a transaction, and (3) the fiduciary had an opportunity to influence the grantor’ s

decision in that transaction. Kar v Hogan , 399 Mich 529, 537; 251 NW2d 77 (1976), overruled

on other grounds in In re Estate of Karmey , 468 Mich 68 ; 658 NW2d 796 (2003). Once the

presumption is established, the party wishing to enforce the trust or wil l must offer other

evidence to rebut the presumption. Id. at 542. If sufficient rebuttal evidence is offered, then the

challenging party’s claim of undue influence will fail unless other evidence exists that

“overcomes” the rebuttal evidence. Id . Howeve r, i f the party seeking to enforce the will fails to

offer sufficient evidence rebutting the presumption of undue influence, then the challenger’s

burden to show that undue influence occurred is satisfied. Id . A trust or will is only invalidated

by undue influence when the decedent’s free agency was overcome to the extent that the will or

trust expressed the desires of someone other than the testator. In re Hannan’s Estate , 315 Mich

102, 123; 23 NW2d 222 (1946). The dispositive question is whether the d ecedent had the

capacity to act on his own motives, and was free to make his own decisions, notwithstanding any

persuasion from others. Id

. The party challenging a trust or will has the burden of proving

undue influence. Bill & Dena Brown Trust v Garcia , 312 Mich App 684, 701; 880 NW2d 269

(2015).

Petitioners argue s on appeal that the probate court should have allowed the case to

proceed to a jury because the presumption of undue influence was established and a reasonable

juror could conclude that und ue influence was exercised. Petitioners argue that the elements for

the presumption of undue influence were met because, at the time that D ecedent executed the

2013 Amendment , David was D ecedent ’ s primary caretaker and co

- trustee of the trust , he stood

to benefit from the 2013 Amendment as he inherited a majority of decedent ’ s estate, and David- 4

- had an opportunity to influence D ecedent because he was heavily involved in D ecedent ’ s daily

life.

The probate court found that the presumption of und ue influence did not exist. The

probate court’s reasoning hinges on the idea that Decedent had to be in a confidential or

fiduciary relationship with David at the time Decedent first expressed his desire to amend his

estate plan rather than at the time De cedent actual ly created the 2013 Amendment. H owev er, t o

give rise to a presumption of undue influence, the pertinent question is whether there was a

confidential or fiduciary relationship between David and Decedent at the time the 2013

Amendment was creat ed

. See Bill & Dena Brown Trust, 312 Mich App at 702 (finding no

presumption of undue influence because the confidential or fiduciary relationship existed after

the questioned documents were created rather than “at the time the questioned documents were

created”).

Here, it is undisputed that David, as the c o

- t rustee, was in a fiduciary relationship with

Decedent at the time the 2013 Amendment was executed

. 1 The evidence also showed that David

had th e opportunity to influence D ecedent’ s decisions, as h e was Decedent’s prima ry caretaker

. Finally, David’s inheritance of a majority of Decedent’s estate based on the 2013 Amendment

clearly meets the third requirement that h e benefit from the transaction. Accordingly, the

petitioners met all of the elements to establish a presumption of undue influence.

The probate court then proceeded to make the factual determination that even if the

presumption was established, petitioners failed to show any evidence of undue influence in the

face of respondents’ rebutta l evidence which permitted summary disposition. Generally,

“ whether the presumption of undue influence is rebutted is a question to be resolved by the

finder of fact. ” In re Peterson Estate

, 193 Mich App 257, 261; 483 NW2d 652 (1992). Once

rebuttal evidence is introduced, the presumption

, originally a mandatory inference, is redu ced to

a permissible inference. Kar, 399 Mich at 548. Unless the rebuttal evidence meets the standard

1 We find that David, as co

- trustee, meets the definition of a “fiduciary relationship.” Fiduciary

relationship is defined as

[a ] relationship in which one person is under a duty to act for the benefit of the

other on matters within the scope of the relationship. Fiduciary relationships

-- such as trustee

- beneficiary, guardian

- ward, agent

- principal, and attorney

- client

-- require the h ighest duty of care. Fiduciary relationships [usually] arise in one of

four situations: (1) when one person places trust in the faithful integrity of

another, who as a result gains superiority or influence over the first, (2) when one

person assumes contro l and responsibility over another, (3) when one person has a

duty to act for or give advice to another on matters falling within the scope of the

relationship, or (4) when there is a specific relationship that has traditionally been

recognized as involving fiduciary duties, as with a lawyer and a client or a

stockbroker and a customer [ In re Karmey

, 468 Mich at 74 n 2 (citation omitted) ].- 5

- for a directed verdict 2 i.e.

, “whether reasonable minds taking evidence in a light most favorable

to the nonmovant, could reach different conclusions regarding a material fact,” the presumption,

as a permissible inference

, is sufficient to get the case before the jury. Bill & Dena Br own Trust,

312 Mich App at 70 3 Id

. at 537 (citation and quotation marks omitted). It is well settled that a

trial court cannot make findings of fact or weigh credibility in deciding a motion for summary disposition. Peterson

, 193 Mich App at 261. Here, b ecause the presumption existed, even if

respondent s provided rebuttal evidence, there was a factual question that could only be resolved

at trial

— whether the rebuttal evidence was sufficient in light of petitioners’ proffered evidence

establishing undue influence. Thus, it was inappropriate for the probate court to grant summary

disposition.

The probate court seemingly determined that petitioners must provide direct evidence of

undue influence. However, as the Michigan Supreme Court has held, “ [u] nquestionably undue

influence may be shown by indirect and circumstantial evidence, but it must be evidence of

probative force beyond mere suspicion

. . . . ” In re Langlois Estate

, 361 Mich 646, 652; 106

NW2d 132 (1960) ( citation and quotation marks omitted). “ Undue influence may be insidious

and not in front of witness, but fair inferences can be drawn from the facts. ” In re Persons

Estate

, 346 Mich 517, 532; 78 NW2d 235 (1956) (citation and quotation marks omitted). “ The

question of credibility is always one for the jury who may not accept all or any part of testimony

that they belie ve to be true.” Id.

Here, there was an abundant amount of circumstantial evidence presented indicat ing that

the 2013 Amendment was the product of David exerting undue influence upon Decedent

. For

example, Art Pisani , Decedent’s previous attorney, testified that when he met with Decedent and

David in July 2012, David did most of the talking and Decedent se eme d confused. At this

meeting, Decedent asked Pisani about amending his estate pl an to favor David. Pisani testified

that this raised a “red flag” because “ it was totally inconsistent with what [ D ecedent ] had set

forth in his 2004 will and trust. ” Pisa ni then asked David to step out side so that he could speak

to D ecedent alone, but David refused. Pisani ultimately refused to amend Decedent’s estate plan

because leaving everything to David was “so contrary” to everything Decedent had discussed

and done in the past

. Further, Pi sani testified that David was “certainly” influe ncing Decedent

and that he would not draft or amend a will if he felt the person was subject to undue influence

. Moreover, in the conservatorship proceeding

, Dr. Swistak was appointed to examine Decedent’s

mental health. In November 2012

, Dr. Swistak conclud ed that Decedent suffered from m ild

cognitive impairment consistent with earl y

- state dementia, which could be progressiv e; that he

was confus ed about his f inancial affairs; and that he “could be easily manipulated by family

me m bers in this regard.” There was also testimony from Madelin White, D ecedent ’s ex

- wife

, that evidenced that the 2013 Amendment was not the result of Decedent’s free will. In her

affidavit, Madelin stated that she knows D ecedent “would never have voluntarily

. . . amended

his will and trust to leave everything to David.” Madelin also stated that David threatened that

2 “The standard applicable to directed verdicts is the same as that for a motion under MCR

2.116(C)(10).” Bill & Dena B rown Trust, 312 Mich App at 702 n 4.- 6

- Madelin would be put in a nursing home if sh e did not side with David. There was also evidence

presented that showed that David isolated Decedent from other family members.

The evidence of Decedent’s cognitive impairment and confusion

, coupled with David’s

threats and isolating Decedent represen t circumstantial evidence that the jury can consider to find

that the 2013 Amendment was the result of David’s undue influence rather than Decedent’s own

free will

. Although several witnesses, including Amber Atkins, Decedent’s attorney at the time

of the conserv atorship proceeding who helped D ecedent execute the 2013 Amendment, testified

that D ecedent did not appear to have been unduly influenced, when viewing the evidence in the

light most favorable to petitioners , reasonable minds could differ on whethe r David exercised an

undue influence over D ecedent

. Accordingly, the probate court erred in granting respondents’

motion for summary disposition

.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

/s/ Brock A. Swartzle

/s/ Kathleen Jansen

/s/ Colleen A. O'Brien