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143307 - In re Estate of Mortimore

In re Estate of ARNOLD MORTIMORE, Deceased
Renee Hanneman and Dean Mortimore,
Douglas G. Chalgian
(Appeal from Ct of Appeals
(Shiawassee Probate – Clatterbaugh, J.)
Helen M. Fiser,
Douglas A. Mielock


​Arnold Mortimore’s wife died; the couple had been married for 53 years. Helen Fiser, whose husband had died about five months earlier, 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 he 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 on June 12, 2009, a neighbor called his daughter, Renee Hanneman, and told Hanneman that Fiser was moving everything out of Mortimore’s house. Hanneman called the police, who agreed to investigate, but said that it appeared to be a civil matter and advised Hanneman to contact an attorney. When approached by a police officer, Fiser said that she had been living with Mortimore and that the address on her driver’s license was not her place of residence. She produced a marriage certificate for the officer, but it had not been filed; Fiser filed it six days after Arnold died. The minister who allegedly performed the ceremony could not be found.

Hanneman was informed that her father had executed a new will naming Fiser as the sole beneficiary of his estate. The day after Fiser filed the marriage certificate, Hanneman filed a petition for appointment of a special personal representative. She disputed whether Mortimore was legally married to Fiser, and she challenged the validity of the will, asserting that Fiser was disposing of her father’s property improperly. Hanneman requested that she be appointed personal representative to secure and preserve the estate’s assets. Hanneman and her brother, Dean Mortimore, argued that Fiser exercised undue influence over their father. Fiser responded, asking that the will be declared valid, and that she be appointed personal representative. The judge appointed an interim representative to conserve the assets of the estate pending the outcome of a trial.

Following a three-day trial, the judge validated the will and appointed Fiser as personal representative of the estate, concluding that Mortimore’s children had not proved that Fiser exercised undue influence over their father. The judge explained that his decision was dependent on the witnesses’ credibility; he noted that Mortimore’s doctor felt that he was able to make decisions of his own free will.

Arnold’s children appealed, and the Court of Appeals reversed the trial court in an unpublished per curiam opinion. Using the three-factor test set forth in In re Karmey Estate, 468 Mich 68 (2003), the Court of Appeals explained that a presumption of undue influence arises when evidence establishes (1) the existence of a confidential or fiduciary relationship between the grantor (the person who makes a will) and a fiduciary; (2) that the fiduciary benefits from a transaction; and (3) that the fiduciary had an opportunity to influence the grantor’s decision in the transaction. In this case, held the Court of Appeals, “the record overwhelmingly supports that Helen [Fiser] was involved in every financial aspect of Arnold’s life and that Arnold trusted Helen to act for his benefit with respect to financial and all other matters.” Moreover, as sole beneficiary, Fiser clearly benefited from Arnold executing the will, and she had the opportunity to influence Arnold’s decision, the appellate court observed. Accordingly, the evidence established a mandatory presumption of undue influence, and the trial court erred in failing to recognize this, the Court of Appeals said. The Court of Appeals also determined, as a matter of law, that Fiser failed to offer sufficient evidence to rebut the presumption of undue influence. The presumption therefore “remained unscathed,” and the Court of Appeals held that the will was the product of Fiser’s undue influence. Fiser appeals