In Re KARMEY ESTATE

                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                  Chie f Justice                   Justices
                                                                  Maura D. Corrigan                Michael F. Cavanagh




Opinion
                                                                                                   Elizabeth A. Weaver
                                                                                                   Marilyn Kelly
                                                                                                   Clifford W. Taylor
                                                                                                   Robert P. Young, Jr.
                                                                                                   Stephen J. Markman
____________________________________________________________________________________________________________________________

                                                                                      FILED APRIL 8, 2003





                In re ESTATE OF

                ABRAHAM KARMEY, Deceased

                ___________________________

                MARIANNE KARMEY-KUPKA, GEORGE

                KARMEY, and IRENE KARMEY,


                        Petitioners-Appellees,


                v                                                                                  No. 121082


                MARGARET KARMEY,


                     Respondent-Appellant.

                ________________________________

                PER CURIAM


                        In their petition to set aside a will, the children of


                the     decedent        claimed        that      the         beneficiary      of    the       will,


                decedent’s second wife, had exercised undue influence over the


                decedent when he made her the sole beneficiary of his estate.


                The probate judge ruled that petitioners had failed to present


                sufficient evidence for a jury to find that decedent’s wife


                unduly influenced her husband, and the judge therefore granted


                respondent’s motion for a directed verdict.                                    The Court of


                Appeals reversed and remanded the case for trial, holding that

there was a question for the jury whether decedent and his


wife had a confidential or fiduciary relationship, which would


create a rebuttable presumption of undue influence.


      The Court of Appeals reluctantly based its holding on


this Court’s decision in Kar v Hogan, 399 Mich 529; 251 NW2d


77   (1976),   which   the   Court    viewed   as   encompassing   most


marriages within the test for applying the presumption.             We


conclude that marriage does not give rise to a presumption of


undue influence.       We reverse that portion of the Court of


Appeals decision necessitating a remand and reinstate the


probate court’s grant of a directed verdict. 


                                     I


      Abraham Karmey died in 1997, leaving his entire estate to


his wife of twenty years, Margaret Karmey.               Margaret was


Abraham’s second wife.         The three children of his first


marriage, petitioners in this case, sought to have their


father’s will set aside, alleging that Margaret had exerted


undue influence over their father when he drafted the will.


They based their contention in large measure on statements he


had allegedly made a year before drafting the will in which he


expressed his intent to give each of them $25,000, as well as


a business to operate.        The inventory prepared by Margaret


Karmey as the personal representative of her husband’s estate


showed a worth of only $57,000 at the time of his death.


      The case proceeded to a jury trial in 1999, with the


petitioners presenting testimony that Abraham feared Margaret


                                     2

and that she had control of the family finances, especially


after he became ill in his last years.        Margaret’s position


was that she had a typical marriage in which she shared


confidences with her husband.        At the close of petitioners’


proofs, Margaret moved for a directed verdict.        The probate


judge granted the motion, noting that for influence to be


undue, it must have overpowered the decedent’s own free will.


The judge said, “[T]he decedent may be influenced in the


disposition of his property by specific or direct influences


without such influences being undue.”        It is not improper,


said the judge, for a spouse to use her powers of persuasion


to shape the crafting of a will. 


     The judge rejected petitioners’ argument that Abraham and


Margaret were in a fiduciary relationship, so as to give rise


to a presumption of undue influence:


          The Contestant——that’s you——has the burden of

     proving that there was undue influence exerted on

     the decedent in making the Will.


          And part of your argument is the spousal

     relationship   becomes   that   of  a   fiduciary

     relationship. I’m going to say that that is not

     the law and that’s not the way I’m going to rule.

     She admitted that there was a confidential

     relationship but there should be a confidential

     relationship between all spouses.


          She also indicated that she didn’t handle his

     finances and he paid the bills. So other than that one

     statement the court does not believe that there’s

     sufficient factual basis that I can find a confidential

     relationship, therefore, the presumption doesn’t come

     into play.


     Petitioners appealed to the Court of Appeals, arguing




                                3

that the judge’s conduct in admonishing witnesses denied them


a fair trial and that the proofs of a trusting marital


relationship between Abraham and Margaret Karmey established


a mandatory presumption of undue influence that had not been


rebutted, making the directed verdict inappropriate.       The


Court rejected the first argument, but on a two-to-one vote


agreed with the latter.        Unpublished opinion per curiam,


issued February 8, 2002 (Docket No. 223270).


     The Court majority noted that Margaret Karmey’s own trial


testimony had indicated that a trusting relationship existed


with her husband.   Her relationship with Abraham, she agreed,


was a “typical marriage” in which they were “very close” and


he was her “closest friend,” sharing things with her that he


would not share with other people.       Id. at 8.   The Court


determined that Abraham, at least on occasion, relied upon


Margaret, and that she had an opportunity to influence him


“because they were married and because he was allegedly afraid


of her.”   Id.   Because there was evidence that Abraham and


Margaret had a “loving and trusting relationship,” it was


appropriate, said the Court, for a jury to resolve the undue


influence issue, including the question whether a fiduciary


relationship existed.   Id.


     The Court of Appeals majority recognized that under its


holding, a presumption of undue influence could attach to all


wills where one spouse leaves property exclusively to the


remaining spouse, especially when to the exclusion of other


                                4

family members.      The majority admitted that it was “not


particularly enamored of the possibility of such a result.”1


Id. at 9.    However, it felt compelled to reach its conclusion


on the basis of this Court’s decision in Kar.


                               II


     Kar concerned an action to set aside a property deed


between a wife and husband on the ground that it was procured


through undue influence.      The action was brought by the


stepchildren of the deceased, Julia Merkiel, who had married


their father in 1914.     The father died in 1951, and Julia


married Edward Merkiel in 1953.      In 1969, property owned by


Julia was deeded to her and Edward as tenants by “their


entireties,” thereby precluding the children from gaining an


interest in the property upon her death. 


     After completion of the proofs, the trial judge found


that Julia and Edward met the test for a confidential or



     1
         This concern was echoed by the dissent, which warned:


          Were we to apply the three-part test to a will

     contest where a spouse leaves everything to a

     surviving spouse, then a factual finding of a good

     marriage would automatically mean that a rebuttable

     presumption of undue influence would arise. This

     surely cannot nor should it be the law.        More

     should be shown to raise a presumption of undue

     influence between spouses than a good confidential

     relationship where each understandably looked to

     the other for advice and took the advice of the

     other.   To hold as the majority does and as the

     majority interprets Kar to have ruled, simply

     serves to penalize a good marriage by requiring a

     will contest trial if a third party objects to one

     spouse leaving virtually the entire estate to the

     surviving spouse.


                                5

fiduciary relationship and, as a result, applied a presumption


of undue influence to the case.             He further found that


defendant had rebutted the presumption, and he therefore ruled


in defendant’s favor. 


     The judge’s utilization of the presumption of undue


influence was based on a widely applied three-factor test,


which this Court detailed in Kar as follows:


          The presumption of undue influence is brought

     to life upon the introduction of evidence which

     would establish (1) the existence of a confidential

     or fiduciary relationship between the grantor and a

     fiduciary, (2) the fiduciary or an interest which

     he represents benefits from a transaction, and

     (3) the fiduciary had an opportunity to influence

     the grantor’s decision in that transaction. [399

     Mich 537.]


     Although Kar accepted the trial judge’s utilization of


the presumption of undue influence, that was not the focus of


Kar. Instead, the critical issue for discussion concerned the


burden of proof and the shifting evidentiary obligations of


the parties when the presumption of undue influence has been


found.    Kar did not discuss what type of proofs were necessary


to meet the three-part test.            It simply operated on the


premise    that   the   marriage   at   issue   was   subject   to   the


presumption. 


     The Court of Appeals majority in this case, recognizing


that the Court in Kar had accepted the trial judge’s finding


that the three-part test was met, concluded that Kar had


established a rule that all spousal relationships of trust and


confidence meet the three-part test, thereby bringing forth


                                   6

the   presumption      of   undue   influence.        We   reject   this

implication in Kar.

                                    III

      “Fiduciary relationship” is a legal term of art,2 as is


the       phrase   “confidential    or    fiduciary    relationship.”3




      2
          Black’s Law Dictionary (7th ed) defines the term 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 highest 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    control   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.

      3
       Although a broad term, “confidential or fiduciary

relationship” has a focused view toward relationships of

inequality. This Court recognized in In re Wood Estate, 374

Mich 278, 287; 132 NW2d 35 (1965), that the concept had its

English origins in situations in which dominion may be

exercised by one person over another.     Quoting 3 Pomeroy,

Equity Jurisprudence (5th ed, 1941), § 956a, this Court said

a fiduciary relationship exists as fact when “‘there is

confidence reposed on one side, and the resulting superiority

and influence on the other.’” 374 Mich 283. 


     Common examples this Court has recognized include where

a patient makes a will in favor of his physician, a client in

favor of his lawyer, or a sick person in favor of a priest or

spiritual adviser. 374 Mich 285-286.     In these situations,

complete trust has been placed by one party in the hands of

another who has the relevant knowledge, resources, power, or

moral authority to control the subject matter at issue.


                                    7

Marriage, however, is a unique relationship, treated in law


differently from other relationships, for a host of obvious


reasons.


      In the context of this case and the analysis provided in


Kar, it can be said that marriage is not a relationship that


has   traditionally   been   recognized    as   involving    fiduciary


duties. It is a unique relationship based on mutual trust and


commitment.     We do not believe the presumption of undue


influence is applicable to such a relationship. 


      One   should   not   lose   sight   of   the   basic   principles


underlying the concept of undue influence. As this Court said


in Kar:


           To 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. [399 Mich 537.]


      The influence of a husband or a wife over that person’s


spouse could be great--at times almost overwhelming--without

                      -                             -

being “undue.”       Although we agree with the standard for


application of the presumption of undue influence established


in Kar, we hold that this presumption is not applicable to


marriage.4



      4

       To be clear, we hold that no presumption of undue

influence arises by the fact of marriage. We do not exclude

the possibility that, under facts other than those presented

in this particular case, a person might exercise undue


                                   8

                                 IV


     In this case, the probate judge found that the proofs


presented by the petitioners did not raise a question of fact


about whether the relationship between Abraham and Margaret


Karmey was a confidential or fiduciary relationship.                  The


record   supports     this   finding.        Further,   the     marriage


relationship between Abraham and Margaret Karmey was not shown


by any factual allegations to be a relationship of undue


influence.


     Because    the   presumption      of   undue   influence    is   not


applicable to marriage, that portion of the Court of Appeals


decision remanding this case for trial is reversed, and the


probate court’s grant of a directed verdict is affirmed.              MCR


7.302(F)(1).


                                    Maura D. Corrigan

                                    Michael F. Cavanagh

                                    Elizabeth A. Weaver

                                    Marilyn Kelly

                                    Clifford W. Taylor

                                    Robert P. Young, Jr.

                                    Stephen J. Markman





influence over a weakened or vulnerable spouse.


                                  9