e-Journal Summary

e-Journal Number : 75158
Opinion Date : 03/25/2021
e-Journal Date : 04/14/2021
Court : Michigan Court of Appeals
Case Name : In re Estate of Verga
Practice Area(s) : Wills & Trusts
Judge(s) : Per Curiam – Letica, Gleicher, and O’Brien
Full Text Opinion
Issues:

Competency; MCL 700.2501(2); Undue influence; In re Estate of Erickson; Rebutting a presumption of undue influence; Cashing of certificates of deposit (CDs); Checks cashed when acting under a power of attorney (POA); Adequacy of the accounting

Summary

The court held that the probate court did not err in ruling that the decedent (JV) was competent when he signed the will, POA, and deed at issue, and that any presumption of undue influence was rebutted. It also did not clearly err in finding no wrongdoing as to the cashing of one CD, and appellant-Waswick had already received a remedy as to any error that occurred related to another CD. As to checks cashed by appellee (LVJ) when acting under JV’s POA, in light of his “testimony that he used the money for JV’s care, the probate court did not clearly err by finding that LVJ did not abuse his authority under the POA.” Further, it did not err in implicitly ruling no adjustment in the accounting was needed based on the contents of JV’s home. Thus, the court affirmed the order upholding the 2012 will and POA and the 2013 deed, and the ruling that LVJ, the PR of JV’s estate, did not abuse the POA. As to JV’s competency when he signed the will and POA, the treating physician, M, “testified that advanced Parkinson’s disease was progressive and often causes cognitive impairment, but that impairment can be intermittent throughout the day.” The document given to JV’s assisted-living facility stating that JV was not able to make financial decisions “referred to ‘intermittent confusion.’ [M] explicitly testified, ‘Even in a given day, you may be very lucid in the morning.’ [M] further opined that JV’s incompetence at the time was related, in part, to pneumonia, dehydration, and other conditions. With treatment, JV’s pneumonia improved.” An attorney (P) who assisted with the document “signings, testified that before the signings he talked with JV to see if he understood what was happening” and that he did not have any information or observe any “signs indicating that JV was not competent.” In light of M’s “acknowledgement of the intermittent nature of the confusion Parkinson’s disease caused and [P’s] testimony,” the court could not find that the probate court clearly erred in determining “that JV was competent to sign the 2012 will and POA.” It further noted “that the 2012 will and POA were materially the same as the 2006 will and POA, aside from” correcting LVJ’s legal name. As to the deed, P “testified that there was ‘no question in [his] mind’ at the time the deed was signed that JV understood what he was signing.”

Full Text Opinion