In these consolidated cases involving an action to quiet title in Docket No. 322401 and a will contest in Docket No. 322402, plaintiff Mark Brown appeals by right the trial court’s order granting defendant Geri Garcia summary disposition with respect to plaintiffs claim that the trust agreement did not authorize the trustee’s deed at issue.
I. SUMMARY OF FACTS AND PROCEEDINGS
Bill Brown and Dena Brown established an irrevocable trust as part of their estate planning that was intended to distribute their assets to various beneficiaries after both had died. After Dena passed away, Bill became the sole trustee of the trust. Bill, as trustee, conveyed the marital home that was a trust asset to himself by means of a “Lady Bird” quitclaim deed,
Plaintiff also argues that defendant was in a fiduciary relationship with Bill and
On June 8, 2007, Bill and Dena as husband and wife created the Living Trust Agreement of Bill M. Brown and Dena G. Brown (the trust). Bill and Dena also executed, on the same day, identical wills that provided for transfer of property to the trust, or, if the testator’s spouse did not survive and the trust no longer existed, then specific distribution provisions mirrored those of the trust. A year later, on June 11, 2008, Bill and Dena exercised their authority under the terms of the trust by amending it and their wills to alter the named beneficiaries. These amendments did not alter the terms of the trust at issue in this appeal.
On February 28, 2008, Bill and Dena acquired the subject property located at 10395 South Airport Road, Avery Township, Montmorency County, for $180,000. The former owners
Defendant was born in California on April 22, 1983, and immediately placed for adoption. In October 2009, defendant was contacted by her birth mother, Pam Altz, who informed defendant that her natural father was John Brown, the brother of Bill. Thereafter, defendant contacted John, who rejected defendant’s assertion that he was her natural father and also refused to provide a genetic sample for the purpose of testing.
At some point, Altz provided defendant’s telephone number to Bill, and he called defendant. After defendant wrote Bill a letter about herself and her family on August 19, 2010, Bill and defendant regularly communicated by telephone and mail. In June 2011, defendant flew from California to Michigan and visited Bill at his home. On January 12, 2012, Bill submitted genetic material for testing and comparison to samples from defendant. The test results excluded Bill as being her possible father, but concluded that the probability the two were related was 97.7% and that the “likelihood that the alleged relative is the biological relative of the tested child is 43 to 1.” Bill apparently provided the test results to John, who responded in a March 8, 2012 letter indicating he thought that the information showed that Bill was her real father.
In February 2012, defendant traveled from California to Michigan for her second visit with Bill. On February 10, 2012, Bill and defendant went to a local branch of PNC Bank, where Bill added her as a joint owner with rights of survivorship to various accounts. Bill and defendant then went to the office of attorney Benjamin Bolser, and Eunice Ruth Dahn joined them. Bill had previously consulted with Bolser and various documents were ready for signature. Defendant — and, if she was unable to serve, Eunice Ruth Dahn — was named as Bill’s attorney-in-fact (durable power of attorney); defendant and Dahn were similarly appointed as Bill’s patient advocate (durable power of attorney for healthcare). Bill executed a last will and testament that (1) disinherited his two children and their children, (2) devised and bequeathed all the residue of his estate to
After February 2012, defendant, accompanied by various members of her family, visited Bill for short periods of no more than 5 days in March, April, August, and October 2012. John Brown continued to disbelieve defendant’s claim of paternity. He wrote to his brother Bill on October 31, 2012, and admonished Bill to not give anyone his cell phone number: “I’m not going to be called and harassed anymore by all of those so called kids of mine who read about me and are after my money. . . .” Plaintiff, John’s son, became the successor trustee of the Bill and Dena Brown trust after Bill passed away on January 16, 2013.
Plaintiff, as successor trustee, filed an action in the circuit court on February 1, 2013 to quiet title in the trust to the Airport Hoad property (Docket No. 322401; LC No. 13-003254-CH). This case requested that the Lady Bird deed be declared null and void because it was in contradiction to the terms of the trust. Defendant filed an answer on March 1, 2013, denying that the deed was contrary to the terms of the trust. In later proceedings, plaintiff developed his alternative theory that defendant had used undue influence to cause Bill to execute the deed. This case was assigned to Circuit Judge Michael G. Mack.
On March 8, 2013, defendant, as Bill’s nominated personal representative in his February 10, 2012 will, filed a petition in probate court for formal appointment as personal representative and for determination of heirs (Docket No. 322402; LC No. 13-007003-DE). Plaintiff appeared by counsel on March 25, 2013. At a hearing held on April 4, 2013 before Probate Judge Benjamin Bolser, the parties stipulated the entry of an order maintaining the status quo. Judge Bolser, because of his prior involvement as an attorney and witness to the matters in controversy, disqualified himself from hearing the matter. The State Court Administrator assigned this case to Judge Mack. On April 22, 2013, plaintiff filed a petition contesting probate of the February 10, 2012 will on the basis that it was the product of undue influence and sought instead to probate Bill Brown’s June 11, 2008 will. On May 13, 2013, the parties and Judge Mack agreed to consolidate the two actions.
In June 2013, plaintiff moved for summary disposition under MCR 2.116(C)(9) and (10), and defendant responded with her own motion for summary disposition under MCR 2.116(1). Judge Mack held a hearing on the motions on July 15, 2013. The trial court took the motions under advisement and subsequently issued an opinion and order on August 8, 2013, granting in part defendant’s motion and denying plaintiffs motion. The trial court concluded the terms of the trust authorized Bill Brown as the surviving settlor-trustee to execute the Lady Bird deed. In particular, the trial court relied on Article VII of the trust, which provided that “[d]uring Settlor’s lifetime, however, Settlor may direct Trustee with respect to any matter concerning the . . . distribution ... of trust assets.” Although Article II prohibited the surviving settlor from revoking or amending the trust in any way, the court found persuasive that Article VII powers referred to a singular settlor. Therefore, the court ruled that “[w]hen
The undue-influence claim, however, remained pending, and following further discovery, defendant moved for summary disposition regarding that claim. After the parties presented oral arguments and further briefing, the trial court issued an opinion and order on May 8, 2014, granting defendant’s motion. The trial court relied primarily on the deposition of bank employee Yvonne Currie, who assisted Bill Brown in making defendant a joint owner of various accounts, and the testimony of then attorney Benjamin Bolser, who drafted and witnessed the various documents executed at his office on February 10, 2012. The trial court ruled that “all of the testimony supports the conclusion that Bill Brown was acting of his own volition and not subject to any undue influence” and that “[p]laintiff has presented no evidence to the contrary.” The trial court also rejected consideration of a presumption of undue influence because “the evidence has not demonstrated a confidential or fiduciary relationship between [defendant] and Bill Brown.” The trial court entered an opinion and order denying plaintiffs motion for reconsideration on June 5, 2014. Plaintiff now appeals by right.
II. THE TRUST
A. STANDARD OP REVIEW
This Court reviews de novo the trial court’s grant or denial of a motion for summary disposition. Maiden v Rozwood,
court must view the proffered evidence in the light most favorable to the party opposing the motion. Maiden,
The interpretation of a trust agreement is also a question of law reviewed de novo on appeal. In re Herbert Trust,
B. DISCUSSION
The trust’s plain terms authorize a settlor serving as trustee to engage in self-dealing and also plainly authorize a settlor to direct the trustee “with respect to any matter concerning the administration [or] distribution ... of trust assets.” The trust further authorizes the trustee to “[m]ake distribution or division of trust assets in cash or in kind,” to “deal in real property, or any interest therein, as Trustee deems appropriate and without regard to the duration of such interests,” and to “[e]xecute and deliver an instrument that accomplishes or facilitates the exercise of a power vested in Trustee.” Consequently, the trial court correctly ruled that the trust granted Bill Brown as the surviving settlor-trustee the authority under Article VII to execute the February 10, 2012 Lady Bird deed quitclaim-ing the Airport Road property to himself, with a remainder to defendant. Further, the trial court correctly ruled that the conveyance did not alter or amend any part of the trust. Thus, the trial court properly granted defendant summary disposition regarding plaintiffs action to quiet title with respect to the Airport Road property.
Plaintiffs arguments to the contrary lack merit. First, plaintiff asserts that the February 10, 2012 quitclaim deed is contrary to the purpose of the trust to distribute the trust’s assets to various named beneficiaries after the death of both settlors. While plaintiff contends that the quitclaim deed effectively modified or partially revoked the trust, this is simply not true given that the trust’s terms remain unchanged from the time that Bill Brown and Dena Brown last jointly amended it. While the quitclaim deed clearly diminishes the amount of property subject to distribution according to its terms, the trust itself was not modified. Nevertheless, plaintiff asserts, without citation to any provision in the trust, that “neither Bill Brown nor Dena Brown could unilaterally remove” the Airport Road property from the trust. But plaintiff fails to cite any authority to support his argument that when a married couple establishes an estate plan that includes a trust, the surviving settlor-trustee is precluded from transferring property from the trust even if doing so is within the discretion vested in the settlor or trustee by the terms of the trust document. “An appellant may not merely announce his or her position and leave it to this Court to discover and rationalize the basis for his or her claims.” In re Temple Marital Trust,
Plaintiff also posits that because Bill Brown and Dena Brown could have taken title to the Airport Road property as
Moreover, in a similar context of a married couple’s estate plan, this Court has rejected imposing restrictions on the surviving spouse’s ability to dispose of the couple’s property after the death of a spouse unless the estate planning documents specifically impose restrictions. In re Leix Estate,
On appeal, this Court first held that the agreement to execute mutual wills was valid and became binding on the death of the first spouse. Id. at 578-579, citing Schondelmayer v Schondelmayer,
In the present case, nothing in the trust or other testamentary documents restricted the surviving settlor-trustee from disposing of trust assets as the surviving settlor-trustee deemed appropriate. Indeed, the trust specifically authorized Bill, as the surviving settlor-trustee, to engage in self-dealing, to distribute trust assets in cash or in kind, to deal in real estate, and to execute any instruments the trustee considered appropriate to carry out these powers. The trust agreement must be enforced as written. Raymond Estate,
III. THE UNDUE-INFLUENCE CLAIM
A. STANDARD OF REVIEW
This Court reviews de novo the trial court’s grant or denial of a motion for summary disposition. Maiden,
A trial court’s ruling on a motion for reconsideration is reviewed for an abuse of discretion, which occurs when the court’s decision falls outside the range of principled outcomes. Yoost v Caspari,
B. DISCUSSION
We affirm the trial court on this issue because plaintiff failed to produce any evidence creating a material question of fact that either the Lady Bird deed or the last will and testament was the product of defendant’s undue influence over the free will of Bill Brown. The trial court also correctly ruled that no evidence was presented to establish a confidential or fiduciary relationship between Bill Brown and defendant so as to invoke the presumption of undue influence with respect to the documents executed on February 10, 2012. Therefore, the trial court properly granted defendant summary disposition and did not abuse its discretion by denying plaintiffs motion for reconsideration.
The party alleging undue influence in the execution of a testamentary instrument must present evidence “that the grantor was subjected to threats, misrepresentation,
Because plaintiff bore the ultimate burden of proof and failed to produce any evidence to raise a material question of fact regarding the elements of undue influence, the trial court properly granted summary disposition to defendant on this claim. Kar,
A presumption of undue influence exists when evidence establishes (1) the existence of a confidential or fiduciary relationship between the grantor and a fiduciary, (2) that the fiduciary or an interest represented by the fiduciary benefits from a transaction, and (3) that the fiduciary had an opportunity to influence the grantor’s decision in the transaction. Kar,
Plaintiff identifies no evidence of a confidential or fiduciary relationship between Bill Brown and defendant that existed before the execution of the questioned documents. Instead, plaintiff asserts a bootstrap argument that conflates the fact that the grant of a power of attorney will create a fiduciary relationship, citing In re Susser Estate,
First, plaintiff cites no authority for the premise of his argument that the creation of fiduciary relationship retroactively extends a presumption of undue influence to acts that took place before the fiduciary relationship was created. Moreover, the cases plaintiff cites do not so hold. Persons Estate,
Second, our Supreme Court, in discussing the elements necessary to establish a presumption of undue influence, clearly states that for the presumption to be “brought to life,” i.e., to apply, evidence must be introduced that would establish “the existence of a confidential or fiduciary relationship between the grantor and a fiduciary. . . .” Kar,
Even if we were to assume that a presumption of undue influence arising from the creation of the power of attorney could be applied retroactively, we recognize that the presumption creates only a permissible inference that may be rebutted by the introduction of evidence to the contrary. Kar,
Plaintiff also argues that the trial court erred by granting summary disposition to defendant regarding undue influence because it relied on “conclusory opinion” testimony of then attorney Benjamin Bolser and bank employee Yvonne Currie. Both witnesses testified in their depositions that they believed Bill Brown was acting of his own volition when executing the questioned documents and that they saw nothing to indicate otherwise. A trial court may only consider documentary evidence on a motion for summary disposition under MCR 2.116(0(10) “to the extent that the content or substance would be admissible as evidence . . . .” MCR 2.116(G)(6); see also Maiden,
In sum, the trial court properly granted defendant summary disposition regarding plaintiffs claim of undue influence with respect to the questioned documents. Leix Estate,
We affirm. As the prevailing party, defendant may tax costs pursuant to MCR 7.219.
MARKEY, P.J., and STEPHENS and RlORDAN, JJ., concurred.
Notes
Although Mark Brown is designated as “appellant” and Geri Garcia as “appellee” in Docket No. 322402, for ease of reference, they will be referred to respectively as “plaintiff’ and “defendant” throughout this opinion.
This type of quitclaim deed is named after President Lyndon Johnson’s wife, “Lady Bird,” because President Johnson was thought to have once used this type of deed to convey some land to her. In re Tobias Estates, unpublished opinion per curiam of the Court of Appeals, issued May 10, 2012 (Docket No. 304852), p 5. A Lady Bird deed conveys an enhanced life estate that reserves to the grantor “the rights to sell, commit waste, and almost everything else[.]” Id. (quotation marks and citation omitted). See also Black’s Law Dictionary (10th ed), p 503 (defining a “Lady Bird” deed as “[a] deed that allows a property owner to transfer ownership of the property to another while retaining the right to hold and occupy the property and use it as if the transferor were still the sole owner”).
One of the property’s former owners was Yvonne Currie, who came to know the Browns as customers at the bank where she worked.
The standard applicable to directed verdicts is the same as that for a motion under MCR 2.116(C)(10), i.e., “whether reasonable minds, taking the evidence in a light most favorable to the nonmovant, could reach different conclusions regarding a material fact.” Skinner v Square D Co,