Local attorneys argue case before the Michigan Supreme Court

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By Roberta M. Gubbins

Legal News

A family squabble that became a lawsuit over a disputed will and allegations of undue influence was argued by Douglas Mielock and Douglas Chalgian, local attorneys, before the Michigan Supreme Court recently.

Seated in the audience to listen to the argument was Boy Scout troop 645 from Grand Ledge. When asked by the boys if they could "talk to a real judge" Marlaine Teahan, a lawyer and mother of two boy scouts, arranged for the group to visit the court and speak to the lawyers following the arguments. Chief Justice Robert P. Young, Jr. welcomed them to the court.

The facts of In re estate of Mortimore, deceased, (case no 143307) are not unusual. Arnold Mortimore's wife of 53 years died. Helen Fiser, a widow, helped with the funeral and was soon involved in every aspect of Mortimore's life; she managed his finances, paid his bills, and essentially ran his car repair business. Fiser suggested that Mortimore prepare a new will, and wanted him to add her name on deeds to his property. She assisted him in revoking a recently created trust, and contacted a notary public to attest to the documents.

When Mortimore died, Fiser produced a marriage certificate and a newly executed will naming her as sole beneficiary. The family started legal action culminating in a trial. The probate court ruled in favor of Fiser and found that the will was not the product of her undue influence.

The Court of Appeals reversed, holding that the probate court failed to recognize a mandatory presumption of undue influence, based on the beneficiary's fiduciary relationship with the deceased.

The questions before the Michigan Supreme Court were: What standards should apply and what factors should a court consider in determining whether a transaction was the product of undue influence where there is a fiduciary relationship between the parties?

Mielock, lawyer for Fiser, asking that the opinion of the Court of Appeals be reversed and the decision of the trial court be reinstated, opened the discussion stating that the "central issue in this matter is the determination of the quantum of evidence necessary to rebut the presumption of undue influence" when it is raised. He argued that the Michigan law provides that the amount of evidence needed to rebut a presumption of undue influence is "substantial evidence," something less than a preponderance of the evidence.

Mielock pointed out in today's society with blended families, there is more opportunity for the presumption of undue influence to be raised and having a high standard of proof to rebut a presumption easily raised could lead to a frustration of the true intent of the donor.

When asked the Chief Justice Young if he was arguing for an elimination of the presumption of undue influence, he answered, "I am not arguing for the elimination of the presumption but for changes" in the amount of proof needed to rebut the presumption once it is raised to 'substantial evidence rather than a preponderance of the evidence."

Chalgian, appearing for Mortimer's children, asked that the Court of Appeals decision be affirmed. He argued that amount of evidence needed to overcome the presumption of undue influences is a preponderance as established in prior Michigan case law, (Kar v Hogan, 399 Mich 529) and is a proper standard because it is a definitive standard familiar to judges.

"Society," he said, "is evolving into an aged population where there could be exploitation of vulnerable adults. If the critical role that the presumption of undue influence plays in these probate court proceedings is reduced, that makes it more difficult to protect the vulnerable population."

Justice Young asked Chalgian to "Please explain to me why an independent theory of presumption would be a good policy."

Chalgian answered it is necessary in this case. "If I establish the presumption then your burden would be to show by a preponderance of evidence why that presumption should not carry the day."

Following the hearing, Chalgian and Boy Scout Troop 645 went to the fifth floor conference room to discuss what they had seen and heard. Chalgian explained that the position of the Supreme Court in the hierarchy of courts, what it takes to be lawyer and how he prepared for his arguments.

Phillip E. Harter, former probate judge and a member of the Chalgian team, said, "This is a very, very important case for people in the probate world" who will read the forthcoming decision with interest.

Published: Thu, Apr 12, 2012