Basic Template

Every month I summarize the most important probate cases in Michigan. Now I publish my summaries as a service to colleagues and friends. I hope you find these summaries useful and I am always interested in hearing thoughts and opinions on these cases. PROBATE LAW CASE SUMMARY BY: Alan A. May Alan May is a shareholder who is sought after for his experience in guardianships, conservatorships, trusts, wills, forensic probate issues and probate. He has written, published and lectured extensively on these topics. He was selected for inclusion in the 2007-2014 issues of Michigan Super Lawyers magazine featuring the top 5% of attorneys in Michigan and has been called by courts as an expert witness on issues of fees and by both plaintiffs and defendants as an expert witness in the area of probate and trust law. Mr. May maintains an “AV” peer review rating with Martindale-Hubbell Law Directory, the highest peer review rating for attorneys and he is listed in the area of Probate Law among Martindale-Hubbell’s Preeminent Lawyers. He has also been selected by his peers for inclusion in The Best Lawyers in America® 2015 in the fields of Trusts and Estates as well as Litigation – Trusts & Estates (Copyright 2014 by Woodward/White, Inc., of SC). He has been included in the Best Lawyers listing since 2011. He is a member of the Society of American Baseball Research (SABR). For those interested in viewing previous Probate Law Case Summaries, go online to: http://kkue.com/resources/probate-law-case-summaries/ DT: August 5, 2015 RE: In Re Robert Winfield Cederquist Revocable Trust STATE OF MICHIGAN COURT OF APPEALS “Alan, you cannot write about baseball all your life” - Mrs. Pollinger - 12th Grade English Comp - Munford High - 1959 BASEBALL LORE: RENNIE STENNETT Usually only Pittsburgh fan’s remember the name of Rennie Stennett. Rennie Stennett was a great Pirate infielder and sometimes played outfield, but he had a good career which should be remembered. Stennett was a better than average ball player prior to his best year in 1977. He had 201 West Big Beaver, Suite 600, Troy, Michigan 48084 | Phone: 248.528.1111 | Fax: 248.528.5129 | www.kempklein.com STATE OF MICHIGAN COURT OF APPEALS Case –continued– posted a batting average of .286 twice and one of .291. He posted a 1.000 fielding average four times. In 1977 we was well on his way to a stellar career. In 116 games, he had 152 hits and a .336 batting average. Then he busted his leg sliding into second base in a game against the Giants. He never regained his form and finished off his career with the San Francisco Giants. Here are a few highlights of his career. Rennie went 7 for 7 on September 16, 1975 and in the first game after that, the next night, got hits in his first two at bats. A total of 9 for 9. Stennett played in four NLCS games and one World Series. The best Rennie Stennett story is a game played against the Dodgers in 1976. While playing second base, Dodgers shortstop, Bill Russell, hit a Texas leaguer to right. Stennett avoided getting between David Parker and Willie Stargell, who crashed into each other. The ball dropped into short right field. Stennett picked up the ball and put it in Willie Stargell’s mitt and Russell was called out as the umpire missed the transgression. The Dodgers still won 5 to 1. What a shame that Stennett shares baseball lore with the likes of Dizzy Dean, Herb Score, Mickey Cochrane and Tony Conigliaro, only because of an injury. REVIEW OF CASE: Referenced Files: Undue Influence Fiduciary Relationship Poisoned Mind Model This is the best defensive opinion on the issue of undue influence that I have seen in a long time. It appears that all decedent’s money went to a caregiver. Nothing is discussed about incompetency merely undue influence. Appellants were summaried out on a (C)(10) motion. Inter alia the Court said facts were presumed most favorably to the Appellant. A good definition of undue influence was given citing the In re Estate of Karmey, 468 Mich 68 and Kar v Hogan, 399 Mich 529 (I am citing these matters in my review as the Cederquist case is unpublished). A presumption of undue influence exists when there is a confidential relationship, the fiduciary or interested party represented by the fiduciary benefits from the transaction and the fiduciary had an opportunity to influence the grantor’s decision. There was an admission that the Appellee had schemed, that there was evidence that Appellee had schemed, to turn decedent against his children and that their relationship soured after Rowen started spending more time with the decedent. The Court of Appeals affirms the “poisoned mind” model and cites the In re Sprenger’s Estate, 337 Mich 514, for the proposition that misrepresentations made for the purpose of influencing the testator may constitute undue influence if it is shown that the testator relied upon such representations in the disposition of property – further In re Rosa’s Estate, 210 Mich 628 and Haines v Hayden, 95 Mich 332 that undue influence can be based upon lies to the decedent regarding their families. That the case may be based upon misrepresentations which take the form 2 STATE OF MICHIGAN COURT OF APPEALS Case –continued– of lies regarding the family and family relationships, BUT the mere poisoning of the decedent’s mind is insufficient, there must also be evidence that the grantor relied upon the misrepresentations and that there was evidence of the mind being poisoned. Karmey is cited here again. Appellants’ case in this matter failed because there was no specific misrepresentation made to the decedent, there was only speculation and conjecture that this had an effect. The Court dismisses the idea that there should be a presumption of undue influence because the court found that there is no confidentiality or fiduciary relationship. The Court gives a good definition of what constitutes the confidential or fiduciary relationship and it says it may or may not exist with a caregiver. In re Estate of Leone, 168 Mich 321. There must be reliance upon the advice and there must be a case where complete trust has been placed by one party in the hands of another who has relevant knowledge, resources and power or moral authority to control the subject matter at issue. There must be a relationship of any quality where the unequal person places complete trust in the person with greater authority. Citing In re Wood’s Estate, 374 Mich 278, which cited Pomeroy on equitable jurisprudence, this Court of Appeals cited Karmey which said “a fiduciary relationship exists as a fact when ‘there is confidence reposed on one side, and the resulting superiority and influence on the other.’ ” The grantor must have been in good physical and mental shape, otherwise we would have read some discussion about mental incompetency. Had there been mental incompetency, a good case of insane delusion might have been proven because of the lies that were evidently told to the grantor about his family. I do not care for this decision. I simply do not like caregivers “scheming” (Court of Appeals word, not mine) and ending up with money to the detriment of a family. The Court of Appeals admits that there was evidence of decedent’s enfeebled health while decedent was signing the beneficiary designations and estate plan documents and there was evidence that Rowan was the caregiver. First, I believe the Court was in error to say that the decedent didn’t rely on the caregiver for financial advice, therefore there was no presumption of undue influence. It’s the reliance that is important, not the quality of the reliance. Special relationships exist between caregivers and patients (see the attached article written by the author in 2009). Also, the case of In re Johnson, 326 Mich 310 (1949) is relevant. The weaker the person is, the less influence is necessary to constitute undue influence. AAM:kjd Attachment 806928 3 .

Load more