Daane v. Lovell

268 N.W.2d 377, 83 Mich. App. 282, 1978 Mich. App. LEXIS 2304

• Court: Michigan Court of Appeals
• Decided: May 10, 1978
• Docket: Docket 77-773
• Status: Published

Opinions

Per Curiam.

Plaintiffs ward, Bertha Lehto, gave her niece, Angela Lovell, a deed to her farm, retaining only a life estate. Plaintiff brought suit for cancellation of the deed, alleging undue influence and failure of consideration. The trial court held that the deed was a valid gift. We affirm.

In this chancery case we review de novo, examining the entire record, weighing all of the evidence and subjecting the trial court’s findings of fact to closer scrutiny than we would employ on review of a jury verdict. Kar v Hogan, 399 Mich 529, 546; 251 NW2d 77, 82 (1976), Tuttle v Department of State Highways, 397 Mich 44, 46; 243 NW2d 244, 245 (1976). Consideration is given to the trial court’s opportunity to better judge the credibility of witnesses who appeared before it. GCR 1963, 517.1. The trial court’s findings of fact will not be set aside unless clearly erroneous; that is, unless we are left with a definite and firm conviction that a mistake has been made. GCR 1963, 517.1, Tuttle v Department of State Highways, supra, Mazur v Blendea, 74 Mich App 467, 469; 253 NW2d 801, 802.(1977).

Prior to 1972, Mrs. Lehto lived on the farm with her husband. They had no children, but Mrs. Lehto did have sisters, a brother and numerous nieces and nephews, some of whom lived in the vicinity. Although the Lehtos visited with many relatives and friends, they saw Mrs. Lovell and her husband most, visiting them on holidays and often for dinner on Sundays. Mrs. Lovell was Mrs. Lehto’s favorite "fair-haired niece”.

The Lehtos’ income consisted of social security and soil bank payments. To qualify for soil bank payments, Mr. Lehto kept several acres of the farm in crops each year. Mr. Lehto handled all of the couple’s financial affairs.

Mrs. Lehto suffered a stroke in 1969, and was comatose for nearly a week. During her hospitalization Mrs. Lovell, who worked at the hospital, helped care for her. Mrs. Lehto subsequently made a good physical recovery, but suffered thereafter from forgetfulness. This caused her to have difficulty managing some things, particularly financial matters. Occasionally her imagination would get away from her, causing her to say things which were not true. A doctor who examined her in 1974 concluded that she was alert as to time and place, but exhibited "slight paranoid tendencies” and overconcern with financial matters.

In 1971, Mr. and Mrs. Lehto executed similar wills, leaving to each other the farm, but providing that if either predeceased the other, then Mrs. Lovell would receive the farm. They did so because Mrs. Lovell had shown them more consideration than anyone else, and because she had cared for Mrs. Lehto in the hospital. Mrs. Lovell was informed of the provision they had made for her in the will.

Mr. Lehto died June 6, 1973. Mr. Lovell took Mrs. Lehto to the local social security office in order to adjust benefits. The office suggested that Mrs. Lehto appoint someone to accept and deposit her social security checks for her. Mrs. Lehto appointed Mrs. Lovell, who had not requested the appointment but nonetheless consented to it. She opened a joint account, in order that she would be able to write checks on the account should Mrs. Lehto become incapacitated. Mrs. Lovell thereafter deposited the social security in the account, and Mrs. Lehto wrote checks on the account to pay her bills. For several years after Mr. Lehto’s death, Mr. Lovell helped Mrs. Lehto by planting several acres of crops per year to qualify Mrs. Lehto for soil bank payments, mowed her yard and repaired her barn.

On August 10, 1973, Mrs. Lehto deeded her farm to Mrs. Lovell, retaining a life estate. The circumstances surrounding the transfer were disputed at trial.

Dennis Keleher testified that he was Mrs. Lehto’s attorney, and had had a conference with her several days prior to the transfer, either in person or by telephone. Mrs. Lehto had requested that he draft a new will, eliminating reference to her deceased husband, changing the residuary beneficiaries, naming Mrs. Lovell executrix, and continuing unchanged the grant to Mrs. Lovell of the farm. On August 10 Mrs. Lehto came to his office, in the company of Mr. and Mrs. Lovell, and executed her will. Mrs. Lehto was concerned about avoiding the cost of probating the farm, and "they” had agreed upon an immediate conveyance to Mrs. Lovell, with a life estate remaining in Mrs. Lehto. Mr. Keleher made sure that Mrs. Lehto understood the significance of what she was doing, taking substantial time to explain that the conveyance would be irrevocable, and explaining alternate methods of accomplishing her intent. Someone had mentioned that Mr. Lovell was doing some work for Mrs. Lehto, so he suggested a contract requiring Mr. Lovell to continue the work in exchange for the conveyance. Mrs. Lehto rejected this alternative because the cost of preparing the contract would be too great. The instructions regarding the deed came from Mrs. Lehto, not the Lovells, and he noticed nothing which would indicate incompetency or undue influence.

Mrs. Lehto testified that she had the will made out, but Mr. and Mrs. Lovell didn’t like it, so they rushed her down to Mr. Keleher’s office, not stopping to see if anyone would go with her. On the way there, Mrs. Lovell told her that they would take care of her for the rest of her life. When they arrived, Mr. Keleher had the deed already prepared, so that the Lovells had cooked up the transfer with Mr. Keleher beforehand. She asked Mr. Keleher what was on the paper, but she didn’t understand what he said. All of his advice was so complicated she didn’t understand a word of it. Something was said about the Lovells taking care of her, but Mrs. Lovell spoke up and said she wouldn’t take care of her. Mrs. Lehto was afraid that, if she didn’t sign the deed, she would lose her soil bank money. "I thought they would do that for me, so I signed it.” Indeed, it was her intent that, in exchange for giving Mrs. Lovell the farm in both the 1971 and 1973 wills, the Lovells would care for her for the rest of her life.

Mrs. Lovell testified that, on August 10, Mrs. Lehto called and asked her to take her to Mr. Keleher’s office. Mrs. Lehto had asked Aunt Elsie to take her, but Aunt Elsie had other commitments. They had no conversation regarding either the will or the deed on the way to the office, and she did not know why they were taking Mrs. Lehto to the office until they had arrived.

Mr. Lovell testified that they took Mrs. Lehto to Mr. Keleher’s office to have her will "verified”. Neither he nor his wife told Mrs. Lehto that, if she didn’t sign the deed, she would lose money. They made no promise to care for her.

Mr. Keleher’s secretary testified that she typed out the deed the same day Mrs. Lehto and the Lovells came to the office.

At some point subsequent to the execution of the deed, the relationship between Mrs. Lehto and the Lovells soured. Mrs. Lehto had been writing checks to pay her bills, but was continuously overdrawing her account. Mrs. Lovell determined that a different arrangement was necessary, so she started putting the checks in her own account, paying Mrs. Lehto’s bills, and keeping track of Mrs. Lehto’s money in a ledger. When Mrs. Lehto requested money for a special purpose, she would give it to her. Mrs. Lovell took care of Mrs. Lehto’s bills in this manner from December 1974 to February 1976.

Mrs. Lehto became dissatisfied with this economic relationship. First, she did not have readily available "pin” money, and could not give money at her church. She had to ask Mrs. Lovell for everything, and Mrs. Lovell seemed unresponsive. Further, she was unhappy that she had to continue to pay taxes and insurance on the property, even though the Lovells "owned it”.

Perhaps the culmination of Mrs. Lehto’s dissatisfaction was an incident involving the sale of some Christmas trees. Mrs. Lehto testified that a man came to her and asked to buy some Christmas trees. He went out and marked some trees, and later returned and removed them. She didn’t recall how many trees he took, or how much he paid. When the Lovells came over and she told them about the man, they "gave me heck”, pinched her, and pulled at her clothes, saying she had no business selling the trees. The Lovells testified that Mrs. Lehto had previously become confused regarding payment on the sale of a tractor. They did not object to the sale of the Christmas trees, but asked her why she did not confide in them so they could help account for the trees. Mrs. Lehto became very belligerent, and it became necessary for Mr. Lovell to restrain her by holding her arms down. They didn’t pinch her or pull at her clothes.

Mr. Keleher saw Mrs. Lehto again September 30, 1974, and determined that Mrs. Lovell was no longer the "fair-haired niece”. It seemed that Mr. Lovell had not plowed, so that Mrs. Lehto did not receive payment from the soil bank. Mrs. Lehto was also dissatisfied with Mrs. Lovell’s handling of her money, and wanted to manage her own affairs.

The trial court found that the deed was intended as a gift, and that there was no contract for the Lovells to care for Mrs. Lehto. There was no undue influence exerted. After the deed was legally executed, Mrs. Lehto simply changed her mind, and that was not a proper basis for relief.

"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. Nelson v Wiggins, 172 Mich 191; 137 NW 623 (1912). However, in some transactions the law presumes undue influence. 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.” Kar v Hogan, 399 Mich 529, 537; 251 NW2d 77, 78-79 (1976).

The presumption was brought to life in the instant case. Mrs. Lovell was Mrs. Lehto’s favorite niece, and had her trust and confidence. Because of her faulty memory, Mrs. Lehto was dependent upon Mrs. Lovell to handle her financial affairs. Mrs. Lehto was dependent upon Mr. Lovell for a substantial portion of her income. There was, therefore, a fiduciary relationship between Mrs. Lovell and Mrs. Lehto. Mrs. Lovell benefited from the transaction, by acquiring an immediate interest in the property. Mrs. Lovell had an opportunity to influence Mrs. Lehto’s disposition of her property during the trip to Mr. Keleher’s office.

Establishment of the presumption created a "mandatory inference” of undue influence, shifting the burden of going forward with the evidence to defendant. Kar v Hogan, supra at 541-542; 251 NW2d at 80-81. Mr. and Mrs. Lovell testified that they did not attempt to influence Mrs. Lehto’s disposition of her property. This rebuttal evidence turned the presumption into a "permissible inference”. The presumption is substantive evidence of undue influence; specifically, the factors giving rise to the presumption are circumstantial evidence that undue influence occurred. Kar v Hogan, supra, In re Wood Estate, 374 Mich 278, 290-291; 132 NW2d 35, 43-44; 5 ALR3d 1, 15 (1965). The burden of persuasion remains on plaintiff throughout. Kar v Hogan, supra. We therefore weigh the evidence of undue influence pro and con, to determine whether plaintiff has met his burden of persuasion.

There are corroborative facts tending to support the permissible inference of undue influence. Mrs. Lehto did not request her attorney to prepare a deed during the initial conference, but left the disposition of the property in the will intact, except for reference to her deceased husband. This would seem to indicate that she thought of the deed between the time of the initial conference and the time when she arrived at the office with the Lovells. This in turn suggests that the Lovells requested or pressured her for the disposition. The reason advanced by Mrs. Lehto to her attorney, of avoiding the cost of probate, would seem to be a factor of greater concern to the Lovells than Mrs. Lehto. Mrs. Lehto testified that the Lovells were to care for her, and she was afraid that she would lose income if she did not sign the deed. Finally, it seems illogical for Mrs. Lehto to attempt to dispose of the same property by two different methods, the will and the deed, on the same day.

There are, however, substantial factors tending to counter the inference. First, Mrs. Lovell was the natural object for such a gift. She was Mrs. Lehto’s favorite niece, had cared for her in the hospital, and showed concern for her welfare. She was kind enough to handle Mrs. Lehto’s financial affairs, an apparently thankless task. Mrs. Lovell’s husband was directly responsible for a substantial portion of Mrs. Lehto’s income, repaired her barn, and kept her lawn mowed. Mrs. Lehto had obviously intended Mrs. Lovell to eventually get the property, as evidenced by the 1971 and 1973 wills.

Second, although Mrs. Lehto was forgetful, and thus incapable of handling her day to day financial affairs, there is no indication that she lacked the capacity to decide to make a gift, or understand the significance of making such a gift. Mr. Keleher testified that she understood what she was doing, and took pains to explain her actions to her to insure that she understood. Mr. Keleher did not see any sign of incompetency or undue influence.

Third, it appears the decision was left to Mrs. Lehto. Mr. and Mrs. Lovell testified that they did not know why they were taking Mrs. Lehto to Mr. Keleher’s office, and did not attempt to influence her. Mr. Keleher testified that Mrs. Lehto indicated what she wanted, and it was with Mrs. Lehto that he discussed alternatives, which she rejected.

We must discount Mrs. Lehto’s testimony of a conspiracy to do her out of her property, and of undue influence. First, her story that the deed was prepared before she arrived, and hence a result of an agreement between Mr. Keleher and the Lovells, appears conjectural and conflicts with that of the other witnesses, including the disinterested secretary of Mr. Keleher. Mrs. Lehto was not "rushed” to the office, but driven there at her request. Although Mr. Keleher’s advice may have seemed incomprehensible by the time of the trial, Mr. Keleher was satisfied that she understood it at the relevant time.

Upon reviewing the entire record, we are satisfied that the transaction was intended as a gift. Although Mrs. Lovell or her husband may have suggested a present conveyance to avoid probate costs, rather than wait to receive the property through the will, such suggestion would not have amounted to undue influence. All concerned anticipated that Mrs. Lovell would receive the property upon Mrs. Lehto’s death, and Mrs. Lehto discounted the irrevocability of the gift or the need for a contract to bind the Lovells to her. Although the desire to be cared for by the Lovells may have been Mrs. Lehto’s motivation, it was uncontroverted that Mrs. Lovell indicated in Mr. Keleher’s office that she would not be bound to care for Mrs. Lehto for the rest of her life. Mrs. Lehto eventually became resentful of the Lovell’s interference in her financial affairs, and her poor memory, resentfulness, tendency to paranoia, and her predisposition to say things which just are not true resulted in the allegations leading to this action.

We have not been left with a firm and definite conviction that the trial court erred in concluding that there was no undue influence.

The deed was valid even absent consideration. Cf. Kar v Hogan, supra at 545; 251 NW2d at 82.

Affirmed. Costs to defendant.