If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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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 ESTATE OF CAROLYNN ANN HORTON.

THOMAS HORTON and ROBERT ALAN 

BIECHLER, Copersonal Representatives of the 

ESTATE OF CAROLYNN ANN HORTON,

Plaintiffs-Appellants,

UNPUBLISHED

May 25, 2023

v No. 362550

Macomb Probate Court

THERESA JANNARO, LC No. 2021-239152-CZ

Defendant-Appellee.

Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.

PER CURIAM.

Plaintiffs appeal as of right the probate court’s order granting defendant’s motion for 

summary disposition under MCR 2.116(C)(10). Plaintiffs argue that the probate court erred by 

finding that there was no genuine issue of material fact that plaintiffs did not establish a 

presumption of undue influence with respect to defendant’s designation as the sole beneficiary of 

the decedent’s individual retirement account (IRA). For the reasons set forth in this opinion, we 

reverse and remand.

I. BACKGROUND

The decedent, Carolynn Ann Horton, was 75 years old at the time of her death on July 12, 

2021. Plaintiffs, Thomas Horton and Robert Biechler, are Carolynn’s sons and the copersonal 

representatives of her estate. Gary Horton, who was Carolynn’s husband and plaintiffs’ stepfather, 

predeceased Carolyn by less than five months, having passed away on February 25, 2021. After 

Gary’s death, Carolynn visited one of the local bank branches of JP Morgan Chase & Co. (Chase), 

and met with private client advisor Damian Juncaj on two occasions to initiate and complete the 

funds rollover process from a retirement account that had been held by Gary to Carolynn’s newly 
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created IRA. Carolynn designated defendant as the sole beneficiary of her IRA, which apparently 

had a value of approximately $220,000 or more at the time of Carolynn’s death.

Defendant testified at her deposition that she first met Carolynn about eight years earlier at 

a yard sale at defendant’s house. Eventually, defendant began assisting Carolynn and Gary with 

housekeeping tasks for approximately three to six hours a week. They did not have a set agreement 

on compensation, which sometimes involved payments of $20 to $50, lunch, or “gas in the car.” 

Defendant also went shopping with Carolynn and helped her bring large purchases home. 

Additionally, defendant and her husband sometimes went out to dinner with Carolynn and Gary.

Before Gary’s death, Gary handled the couple’s finances. After his death, Thomas and his 

wife initially helped Carolynn with paying her bills. However, defendant testified that Carolynn 

told her that she did not like how they were paying the bills and asked defendant to take over the 

task instead. Defendant agreed. At first, defendant wrote the checks and Carolynn signed them. 

Defendant was subsequently added to Carolynn’s checking account to streamline the process. 

Defendant explained:

Q. Do you know the reason why you were added to the account?

A. It was easier for me to pay the bills when I just wrote the checks and 

everything right then and there.

Q. Okay. How did it come around that -- how did it come to be that it was 

determined that it would be easier for you to do that? Is this something you had a 

conversation with Carol?

A. We went to the bank. Carol wanted to get some money out, and Carol 

was talking to the bank teller. And the bank teller told her it would be easier, if I 

was on the account, for me to write the checks instead of having two different 

writings on the check.

Defendant acknowledged she was authorized to write checks from Carolynn’s account 

without first obtaining Carolynn’s permission. However, defendant testified she never withdrew 

any money for her own benefit from Carolynn’s account, that she and Carolynn were friends, and 

that Carolynn trusted her. Defendant also had access to Carolynn’s Social Security number so she 

could resolve issues with bills as necessary.

Defendant began spending more time with Carolynn after Gary’s death. She estimated that 

she spent approximately 20 hours a week with Carolynn, primarily watching television, as well as 

talking, cleaning, and paying bills.

Defendant assisted Carolynn in completing the paperwork for rolling over Gary’s 

retirement account following his death, and defendant drove Carolynn to both of the appointments 

with Damian regarding Carolynn’s new IRA. There was evidence defendant attended both

meetings, although she claimed to have waited outside for the first half hour of the first meeting. 

Damian testified that defendant was present during the entirety of both meetings. At the second 

meeting, on July 6, 2021, Carolynn signed the paperwork to complete the process of opening her 
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new IRA account with the money from Gary’s retirement account. Carolyn also designated 

defendant as the beneficiary of the new IRA at the July 6 meeting. 

Carolynn died six days later. That same day, defendant went to the bank and informed 

bank personnel of Carolynn’s death. According to defendant, it was at this point that she first 

learned that she was the beneficiary of Carolynn’s IRA.

Plaintiffs initiated this action alleging that defendant procured her designation as the sole 

beneficiary of Carolynn’s IRA through undue influence. Defendant eventually moved for 

summary disposition under MCR 2.116(C)(10), arguing that there was no genuine question of 

material fact that Carolynn and defendant did not have a confidential or fiduciary relationship and 

that plaintiffs thus could not establish a presumption of undue influence. Plaintiffs opposed 

defendant’s motion and argued that there was evidence creating genuine questions of fact 

regarding undue influence. Plaintiffs argued that a confidential or fiduciary relationship existed 

because there was evidence that Carolynn placed complete trust in the faithful integrity of 

defendant over multiple aspects of Carolynn’s finances, including her checking account, bill 

paying, and IRA rollover.

At the conclusion of the hearing on the motion, the probate court granted summary 

disposition in defendant’s favor as follows:

Thank you. All right, I’m going to grant the Motion for Summary 

Disposition. I do find that there is no presumption of undue influence in this case

whatsoever. Theresa was not in a fiduciary capacity. Helping somebody write bills 

doesn’t make them dependent on them. It doesn’t put them in a fiduciary capacity. 

I mean the fact is that if Theresa didn’t assist Carolyn paying the bills I’m sure she 

would have just found somebody else to help her write out the checks.

Pursuant to the Estate of Karmey,

“To establish undue influence it must be shown that the granter was 

subjected to threats, misrepresentation, undue flattery, fraud, or

physical or moral coercion sufficient to overpower volition, destroy 

free agency and impel the granter to act against his inclination and 

free will.”

That’s a big burden and it’s just not met in this case. So, I’m granting the 

Motion.

An order was entered granting summary disposition for the reasons stated on the record. 

This appeal followed.

II. STANDARD OF REVIEW

This Court reviews de novo a lower court’s decision whether to grant a motion for summary 

disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). 

Summary disposition pursuant to MCR 2.116(C)(10) is appropriate when, “[e]xcept as to the 

amount of damages, there is no genuine issue as to any material fact, and the moving party is 
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entitled to judgment or partial judgment as a matter of law.” MCR 2.116(C)(10). When 

considering a motion under MCR 2.116(C)(10), a court must “consider all evidence submitted by 

the parties in the light most favorable to the party opposing the motion,” and the court may only 

grant the motion if “there is no genuine issue of material fact.” El-Khalil, 504 Mich at 160. “A 

genuine issue of material fact exists when the record leaves open an issue upon which reasonable 

minds might differ.” Id. (quotation marks and citation omitted).

III. ANALYSIS

Generally,

[t]o 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).]

However, a

presumption of undue influence arises upon the introduction of 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. [In re Gerald L Pollack Trust, 309 Mich 

App 125, 149; 867 NW2d 884 (2015) (quotation marks and citation omitted).]

Here, plaintiffs argue that the probate court erred by determining that the presumption of 

undue influence had not been shown and that defendant was entitled to summary disposition.

With respect to the first prong, the phrase “confidential or fiduciary relationship” is a legal 

term of art. In re Karmey Estate, 468 Mich at 74. Our Supreme Court has explained that this term 

is a broad one. Id. at 74 nn 2 & 3; Van’t Hof v Jemison, 291 Mich 385, 393; 289 NW 186 (1939). 

A confidential or fiduciary relationship is one that is “founded on trust or confidence reposed by 

one person in the integrity and fidelity of another,” and “the rule embraces both technical and 

fiduciary relations, and those informal relations which exist whenever one man trusts in and relies

upon another.” Van’t Hof, 291 Mich at 393 (quotation marks and citation omitted).

Here, there was record evidence that Carolynn entrusted defendant with paying all of her 

bills and added defendant to her checking account to facilitate this task. Accordingly, defendant 

was authorized to write and sign checks from this account without needing any further permission 

from Carolynn. Moreover, defendant was entrusted with Carolynn’s Social Security number and 

assisted Carolynn with the process of rolling over Gary’s retirement account funds into a newly 

created IRA. Defendant’s assistance with respect to the IRA included suggesting to Carolynn what 

bank to go to for a newly created IRA, helping with paperwork, driving Carolynn to both meetings 

at the bank, and sitting through most, if not all, of these two meetings. A jury could reasonably 

find from this evidence that there was a confidential or fiduciary relationship between Carolynn 
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and defendant based on the trust and confidence Carolynn placed in defendant with respect to her 

financial affairs. Van’t Hof, 291 Mich at 393 (concluding that there was a confidential or fiduciary 

relationship where the decedent had placed her trust in her friend to handle her bank accounts and 

act “solely as her agent in these transactions”). 

Next, being named the sole beneficiary of the account worth over $200,000 clearly 

constitutes a benefit. In re Gerald L Pollack Trust, 309 Mich App at 149. Finally, although 

defendant appeared to deny having specifically discussed the beneficiary issue with Carolynn, she 

seemingly admitted in her deposition to having discussed the IRA generally with Carolynn. Given 

the record evidence regarding the amount of time defendant and Carolynn spent together and 

viewing the evidence in a light most favorable to plaintiffs, a jury could reasonably find that 

defendant had the opportunity to influence Carolynn’s decision on who to name as the beneficiary

of the IRA. Id.

It is important to bear in mind that when considering a motion for summary disposition 

under MCR 2.116 (C)(10), the primary function of the trial court is to “consider all evidence 

submitted by the parties in the light most favorable to the party opposing the motion,” and grant 

the motion only if “there is no genuine issue of material fact.” El-Khalil, 504 Mich at 160. “It is 

well settled that a trial court may not make findings of fact or weigh credibility in deciding a 

motion for summary disposition.” In re Peterson Estate, 193 Mich App 257, 261; 483 NW2d 624 

(1991). “Whether the presumption of undue influence is rebutted is a question to be resolved by 

the finder of fact.” Id. Here, the probate court erred by making impermissible findings of fact in 

the context of a motion for summary disposition in order to decide that there was no evidence of 

undue influence. The record evidence, when viewed in a light most favorable to plaintiffs, 

established that questions of material fact existed whether defendant obtained her status as 

beneficiary of the IRA through undue influence over Carolynn.

Reversed and remanded for further proceedings consistent with this opinion. We do not 

retain jurisdiction. Plaintiffs having prevailed is entitled to costs. MCR 2.119(A).

/s/ Anica Letica 

/s/ Stephen L. Borrello 

/s/ Michael J. Riordan