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STATE OF MICHIGAN
COURT OF APPEALS


In re Estate of ALBERT KELLER, Deceased.

CAROL DeYOUNG, Petitioner-Appellee, v ROY DOUGLAS KELLER, Respondent-Appellant.

UNPUBLISHED June 26, 2001

No. 220383 Tuscola Probate Court LC No. 00-028386

Before: Doctoroff, P.J., and Holbrook, Jr. and Hoekstra, JJ. PER CURIAM. Respondent, heir at law and former personal representative of the decedent's estate, appeals as of right from the probate court order granting petitioner's objection to the accounting and inventory of the decedent's estate and determining what items were assets of the estate. We affirm in part and reverse in part. At trial, petitioner, heir at law and current personal representative of the decedent's estate, alleged that funds deposited into a joint savings account were never intended to pass to respondent and that the property formed a part of the estate. Petitioner also maintained that certain items of diamond jewelry that were in the possession of respondent were on loan from the decedent and should be included in the estate's inventory. Petitioner further argued that respondent's claim for reimbursement of funeral expenses should be disallowed because the expenses were paid with money withdrawn from the decedent's savings account prior to his death for the express purpose of paying for his anticipated funeral expenses. The trial court agreed with petitioner and also found respondent derelict in his duties as personal representative. The trial court appointed petitioner as the new personal representative and required respondent to turn over all assets of the estate and to give an accounting of his administration. Respondent first argues on appeal that the trial court erred in determining that the joint savings account was part of decedent's estate rather than an account passing to the joint account holder pursuant to the right of survivorship. Specifically, respondent contends that the -1-

presumption of the right of survivorship inherent in the creation of the joint account with the decedent was not rebutted because petitioner failed to establish that there was fraud or undue influence in the creation of the account. Moreover, respondent argues that his investiture with a power of attorney is immaterial because no proofs were offered to rebut respondent's claim that the joint account was created before the execution of the power of attorney. In actions sounding in equity, we review the trial court's conclusion de novo, In re Conant Estate, 130 Mich App 493, 498; 343 NW2d 593 (1983), but we accord considerable weight to the trial court's findings of fact because of its special opportunity to hear the evidence and observe the witnesses, In re Clark Estate, 237 Mich App 387, 395-396; 603 NW2d 290 (1999), In re Conant Estate, supra at 498-499. "Findings of fact made by a probate court sitting without a jury will not be reversed unless clearly erroneous." In re Erickson Estate, 202 Mich App 329, 331; 508 NW2d 181 (1993); MCR 2.613(C). A finding is clearly erroneous where, notwithstanding evidence to support the finding, the reviewing court is left with a definite and firm conviction that a mistake was made. In re Estes Estate, 207 Mich App 194, 208; 523 NW2d 863 (1994), citing In re Erickson Estate, supra. Deposits made to financial institutions in the names of two or more persons and payable to either or the survivor of them becomes the property of both persons as joint tenants. MCL 487.703; Dep't of Treasury v Comerica Bank, 201 Mich App 318, 325; 506 NW2d 283 (1993). MCL 487.703 provides in relevant part: The making of the deposit in such form shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding, to which either such banking institution or surviving depositor or depositors is a party, of the intention of such depositors to vest title to such deposit and the additions thereto in such survivor or survivors. Nonetheless, this presumption can be rebutted "by reasonably clear and persuasive proof to the contrary, i.e., by proof of the decedent's intent that title to the jointly held funds not vest in the survivor." In re Cullmann Estate, 169 Mich App 778, 786; 426 NW2d 811 (1988); Wechsler v Zen, 2 Mich App 438, 441; 140 NW2d 581 (1966). However, where the parties are involved in a fiduciary relationship for which the fiduciary receives benefits as a result of the relationship, a presumption arises that the benefits were procured by undue influence, and although the respondent must show by the preponderance of the evidence that undue influence was not operative, the petitioner retains the burden of persuasion. Conant, supra at 497-498; Habersack v Rabaut, 93 Mich App 300, 305; 287 NW2d 213 (1979). The Habersack Court explained: Due to this latter presumption [of undue influence], the burden devolved upon the [respondent] to show, by a preponderance of the evidence, that undue influence was not operative. In satisfying this burden, the [respondent] is benefited by a permissible inference that the joint bank account was intended to pass to the survivor. This permissible inference remains as a vestige of the rebutted statutory presumption. [Habersack, supra at 305-306 (citations omitted).]

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In the present case, respondent has presented evidence sufficient to rebut the presumption of undue influence, and petitioner failed in carrying her burden of persuasion. Our review of the record finds no evidence contradicting respondent's position that his father intended him to receive the joint account funds by right of survivorship. Respondent testified that he believed that he was added as a joint account holder before the signing of the power of attorney, and that this was done at his father's instigation

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