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In re Mardigian Estate

Court of Appeals of Michigan

October 8, 2015

In re MARDIGIAN Estate.
v.
MELISSA GOLDBERG, SUSAN V. LUCKEN, NANCY VARBEDIAN, EDWARD MARDIGIAN, GRANT MARDIGIAN, MATTHEW MARDIGIAN, and JP MORGAN CHASE BANK, NA, Appellees MARK S. PAPAZIAN, Executor for the Estate of ROBERT DOUGLAS MARDIGIAN, Appellant,

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          Charlevoix Probate Court. LC Nos. 12-011738-DE; 12-011765-TV.

         For MARK S PAPAZIAN, APPELLANT: RODGER D YOUNG, FARMINGTON HILLS, MI.

         For MELISSA GOLDBERG, APPELLEE: JOSEPH A AHERN, BIRMINGHAM, MI.

         For SUSAN V LUCKEN, APPELLEE: MARC E THOMAS, BLOOMFIELD HILLS, MI.

         For EDWARD MARDIGIAN, APPELLEE: PAUL D HUDSON, KALAMAZOO, MI.

         For JP MORGAN CHASE BANK NA, APPELLEE: KIMBERLY J RUPPEL, TROY, MI.

         Before: WILDER, P.J., and SERVITTO and STEPHENS, JJ. Servitto, J. (dissenting).

          OPINION

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          [312 Mich.App. 555]  Kurtis T. Wilder, P.J.

         In this action originating in the Charlevoix Probate Court, appellees contested the August 13, 2010 trust and the June 8, 2011 will of decedent Robert D. Mardigian (decedent). Appellees challenged the trust and will on the basis that appellant, the proponent of the documents and the recipient, together with his children, of the majority of decedent's estate, also was the drafter of the documents in violation of the Michigan Rules of Professional Conduct (MRPC). In a motion for summary disposition filed in the probate court under MCR 2.116(C)(10), appellees contended that the devises were void as against public policy and, therefore, unenforceable. The probate court granted the motion for summary disposition, and this appeal ensued. For the reasons articulated herein, we reverse.

         I. STATEMENT OF FACTS

         On August 13, 2010, decedent executed an amended [312 Mich.App. 556] trust prepared by appellant,[1] decedent's longtime friend and an attorney, which left the bulk of decedent's estate to appellant and his children, Todd Papazian and Tyler Papazian. Decedent also executed a will prepared by appellant on June 8, 2011, that contained similar provisions. Decedent died on January 12, 2012.

         After decedent's death, appellant sought to introduce the documents he had prepared for probate, along with a petition to be appointed personal representative pursuant to the language in the document. Appellees Edward Mardigian, Grant Mardigian, and Matthew Mardigian, decedent's brother and nephews, respectively, challenged the introduction of these documents into probate, as did two of decedent's nieces, appellees Susan Lucken and Nancy Varbedian, and decedent's girlfriend, appellee Melissa Goldberg. At the same time, various appellees, primarily appellees Edward, Grant, and Matthew Mardigian, contended that subsequent writings by decedent, namely a letter with what appellant termed " dubious" handwritten notes should be submitted instead, as writings intended to be a will, and as an amendment to decedent's trust.

         Following discovery, appellees Edward, Grant, and Matthew Mardigian moved for partial summary disposition and asked the probate court to void all gifts contained in both the trust and the will to appellant and his children, as a matter of law. Edward, Grant, and Matthew Mardigian argued that the gifts were against public policy, as evidenced by the MRPC, specifically MRPC 1.8(c), which provides, " A lawyer shall not prepare an instrument giving the lawyer or a [312 Mich.App. 557] person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is

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related to the donee." The probate court initially denied the motion.[2] However, after Edward, Grant, and Matthew Mardigian verbally renewed their motion during the hearing on November 6, 2013, the probate court then granted the motion on the ground that, as a matter of public policy, it could not enforce the documents.

         After the probate court granted the motion for summary disposition, the matter proceeded toward a scheduled jury trial. On the date of the scheduled trial, the probate court denied appellant's motion for a stay under MCL 600.867(1); however, the probate court and other parties agreed that appellant could continue to participate in the subsequent proceedings. For reasons not clear in the record, appellant decided not to continue to participate in the proceedings. Thereafter, the other parties reached a settlement concerning the distribution of funds and the jury was excused. This Court subsequently denied appellant's motion for a stay, and denied reconsideration.

         II. STANDARDS OF REVIEW

          We review de novo a trial court's ruling on a motion for summary disposition. Dillard v Schlussel, 308 Mich.App. 429, 444; 865 N.W.2d 648 (2014).

When considering a motion for summary disposition under MCR 2.116(C)(10), a court must view the evidence submitted in the light most favorable to the party opposing the motion. " Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to [312 Mich.App. 558] judgment as a matter of law." A genuine issue of material fact exists when the evidence submitted " might permit inferences contrary to the facts as asserted by the movant." When entertaining a summary disposition motion under Subrule (C)(10), the court must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in favor of the nonmoving party, and refrain from making credibility determinations or weighing the evidence. [ Id. at 444-445 (citations omitted).]

          We also review de novo the proper interpretation of trusts and wills, as well as the interpretation of statutes. In re Estate of Stan, 301 Mich.App. 435, 442; 839 N.W.2d 498 (2013).

         III. ANALYSIS

         A. BINDING SUPREME COURT PRECEDENT

         In In re Powers Estate, 375 Mich. 150, 157, 176, 179; 134 N.W.2d 148 (1965), our Supreme Court held that a will, devising the bulk of the estate to a member of the family of the attorney who drafted the will, and also naming the attorney as an additional beneficiary, was not necessarily invalid. Rather, in such circumstances, a question of undue influence exists, such that undue influence arising from the relationship is presumed to have been exerted as the means to secure the testamentary gift. Id. at 179. In remanding for further proceedings, the Powers Court stated:

This will contest is on no different legal and factual basis than any other in our past jurisprudence and we caution court and counsel if the case is retried to confine the testimony to the issues:
(1) The well-defined, well-recognized test of the testatrix' competency to execute

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the testamentary instrument at the time she ...

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