In will contests, courts apply specific legal standards to determine testamentary capacity and undue influence. Under Michigan law (MCL 700.2501), a testator must have the ability to understand they are disposing of property after death, know the nature and extent of their property, know the natural objects of their bounty, and understand the general nature and effect of their act. A presumption of capacity exists, and the burden of proof rests on the party contesting the will. For undue influence, courts examine whether a fiduciary or confidential relationship existed, whether the alleged influencer benefited from the will, and whether they had the opportunity to influence the testator's decision. Courts consider the totality of circumstances, including the testator's independent decision-making, presence of independent counsel, and geographic distance between parties, to determine whether the testator's wishes were truly their own.
Mobile Eviction!Hinzugefügt:
Thank you for being here.
>> Yeah. Uh >> hello. Hello.
>> I'm gonna deal with this one first. We have a damage hearing with uh Mr. Apps and uh the plaintiff and the defendant are here, but I want to deal with this matter. This is file number 25200022LT.
It's entitled Golden Pond Estates versus Kristen Wallace, Terara Lince, and Ever Valent Court.
Uh there was a judgment that entered in this case. This is a mobile home case.
It entered last November.
The plaintiff did not seek to execute on the order giving the defendants time to either pay or move the mobile home.
Mr. Kroandike filed a motion for an order to extend the time of the deadline for the rid of eviction that was held on May 1st.
Mr. Kroandike was here and the manager KCV via was here. None of the defendants were here.
So I granted the order requested by Mr. Kandike to extend the deadline for the rid of eviction.
The application for rid of eviction is extended to be not before May 11th.
I order that plaintiff uh may seek a new writ of eviction and the defendant have 90 days to move or sell the mobile home.
>> So that was signed on May 1st. In the meantime, I got a bunch of incomprehensible stuff from Tara Lance.
I didn't get a motion. I didn't get a pleading. I got a bunch of random letters which I have a very difficult time reading.
and uh some screen captures of some texts.
So, I thought I would try to get everybody here and explain what happened.
Um, they worked with you for months and months to try to make this work and it did not work. So, I entered an order on May 1st indicating that they could ask for a rid of eviction after May 11th and they would have 90 days to move or sell a mobile home.
>> Thank you.
>> All these things that you just randomly sent to the pliff >> are not a motion for anything.
Um, I sent each letter that you sent to me to Mr. Kandike.
My order of May 1st remains in effect.
They can ask for eviction on or after May 11th and you have 90 days to move or sell a mobile home. Mr. Kromdikeke, do you wish to comment any further on that?
>> Um, everything you said is accurate. The only comment that I would add is that you know we we had tried to work with um Miss Lince and Mr. val court here >> and we are the ones who reached out several times. We are the ones who put the proposal on the table. As a >> matter just just a minute, Mr. valent court >> and uh as current as as I'm seeing currently there's there's a a a balance of $5,4540 and it doesn't look like any payments have been made since December. Uh the last payment that was made was December of of 2025. There was a payment made um December 29 of 2025 as well, but it looks like that one got reversed. So um I I just want to update you with with where we're at. So So there have been no payments so far in 2026.
>> Three months of this year, we were not even present at the homes. Your client did not. They tried to >> Mr. Alen court, my order of May 1st remains in effect. We set a hearing, you didn't show up. I order the order. All these random letters you send to the court are not a formal pleading.
Uh you try to explain what is the situation is. The situation is uh they're going to evict you probably within the next 10 days. You have 90 days to move or sell the mobile home.
>> We have a buyer for the home, your honor.
>> Say that again.
>> We have a buyer for the home already, sir.
>> Very good.
>> And we are simply waiting for uh this to be done and over with and ma'am to give the okay. And I have uh paperwork stating I have $10,000 coming my way.
I've asked them several times politely to be patient with me and they will get their money.
All right. Well, my order stands uh they can seek to evict you. You have 90 days to move or sell the mobile home.
So, you have 90 days from May 1st, which is to June 1st, July to June, I guess, to September 1st. Uh no, May till August 1st.
>> So, if you sell it by your >> honor, it's probably about July 28th.
So, >> hold on. Wait, wait, wait a moment. As long as with my bill, I have someone ready to move in if the okay is given by you at what >> I can't I can't understand you.
>> You arrange set up >> him will be able to move in and they can start. I attorney $10,000 coming at me.
>> I didn't get any of that. Mr. Mr. Valanc Court, you're you're in the bathroom there in the bathtub and it isn't translate very well.
>> There's the window right here. I'm right here.
>> Oh, I thought that was a shower curtain.
>> All right. All this stuff you sent me is not a pleading. It's confusing. I don't understand it. We had a hearing. Nobody showed up for the hearing. They've given you way past November. It's now almost June. No rent has been paid since December of last year. They want you to move. They're going to ask for a rid of eviction and the sheriff is going to come put you out.
I would suggest that you stay in contact with Miss Via >> and uh >> All right. Very good. Stay in contact with your manager. And if you do sell the mobile home within the next 90 days, that's great. Uh although I do think they have the right to approve the person that purchased it.
>> We're just not revealing your name because we do.
>> Simple and easy. We have the buyer.
They've already approved and they wanted way too much and weren't selling it.
>> All right. I'm not getting any of this, but um All right. Uh stay in contact with Miss Via and uh Mr. Krodikeke, your order of May first stands. Uh Mr. uh Miss Lince and Mr. Valent Court, you're going to need to prepare to move.
Um, and I hope you can find other place to be.
>> Reckon, you know darn well this is your fault.
>> All right, good luck.
>> I had more nuggets than I knew about.
>> All right, thank you.
>> File 25-11081-de.
If I can have the attorneys place their appearances on the record, please.
>> Broken on behalf of Diane Gilton.
>> Thank you.
>> Good afternoon, your honor. Rebecca Haynes appearing on behalf of the personal representative uh Kevin Mercer.
>> Do we have all the parties council?
>> Yes, John.
>> All right. This is a motion for summary disposition I believe filed by Ms. Gilpin. Uh Mr. Pinkrink, you want to argue your motion?
>> Other way around, your honor.
>> I apologize. Sorry about that.
>> No problem.
>> Go ahead.
>> Good afternoon, your honor. Uh, this is respondents motion for summary disposition uh as to the petition to invalidate the will. This is brought pursuant to Michigan court rule 2.116 C10. Um, petitioner Diane Gilpin has alleged a account of lack of capacity and another of undue influence in her petition. um the reasons stated in our brief and at this oral argument we believe that she has failed to sustain her burden of claiming either uh burden of proof on either claim uh specifically there's absolutely no evidence that deedent lacked test >> the heart transitions are SG and we all know it >> testimentary capacity on December 7th 2024 when he executed the most recent will indeed uh furthermore there's insufficient evidence to support petitioner's allegation that deedent was unduly influenced by anyone, let alone respondent Kevin Mercer. Um, discovery in this matter has closed on uh back in December of 2025 and uh no such evidence has been presented to date either throughout the course of discovery or in response to our motion.
Uh the deedent Joseph Lazlo is a 96-year-old man who discovered that money was being taken from his accounts by his daughter, petitioner Diane Gilman, without his knowledge or permission. He consulted his attorney.
He reviewed his records and he decided to change his estate plan to cut out his daughter. Um, petitioner now asked that this court reverse his wishes.
Uh, petitioner again bears the burden on both of these claims. Um, specifically with respect to testimentary capacity, that is presumed.
She has to show that at the time the will was executed um that he lacked testimentary capacity.
At the time the will was executed. It was uh the individual who drafted this will attorney Gene Michel Weiss was present with deedent um as outlined in the facts as well as my reply brief. The will was read aloud to deedent. He understood at that time everything that was happening with the will and he agreed and he signed it on that date.
Um, previous to that he had had several discussions with his attorney which she testified to that he did not want everything to be left to Diane that he wanted to change his will and he expressed how he wanted to change his will. Um, additionally, the uh primary care physician for deedent had uh stated that he did not believe that there was any issues with his capacity. Um, the neighbor who was also present at the time the will was signed did not believe that there had been any memory problems um or any reason to suggest that he may have had difficulty with his mental faculties. There's absolutely no evidence that he was suffering from dementia or any concerns thereof. There's no medical records to support that and there's no testimony to support that. Uh again, these are the individuals who were with Decedent in the last several months of his life.
With respect to the presumption of undue influence, uh a presumption does arise if there's a fiduciary relationship.
However, in this case, none existed. Uh the respondent in this matter, Mr. Mercer, was not in a fiduciary relationship with the deedent. Um respondent falsely claims he was power of attorney. That's not true. Uh he was never the uh financial power of attorney or durable power of attorney. He merely had power of attorney with respect to healthcare. And that was only if deedent was unable to make his decisions.
Um again the the will change was Decedent's independent autonomous decision. He knew there was something wrong. Every time he went to go to check on his uh to the bank, he noticed more and more money was missing. This led him to have a suspicion to ask the bank to give him his records. When he obtained the records, he asked several people for assistance, ultimately meeting with his attorney several times. His attorney specifically testified that there were several transactions that she believed were egregious. This isn't a situation where seeds were planted in his head.
There is direct evidence both through testimony and through records that money was being taken. Um and Deedent was reasonably frustrated.
There was absolutely a reason for him to be frustrated.
Everybody, including his own attorney at first, did not believe that money was being taken. But once the records were reviewed, it was very clear. Um, and at that time, the student became very frustrated and he wanted to change his will. Again, this was discussed with several individuals as we outlined in both our brief and as well as our reply. Um, he was extremely clear on his wishes.
Again, testified to by his attorney. Um and again respondent here lives in Adrian which is approximately 3 hours away uh if not further from where deedent lived. It's just there is no question of reasonable fact here. know jury is going to determine that an individual who lives that far away who is not with deedent on a daily basis who didn't handle his financial affairs had the ability uh to overcome his direct decision making and his willpower to change his will to um in this matter the decision was completely Mr. llo's uh or the deedence on his own and he made that deliberate decision. Um therefore, for the reasons stated today on the record as well as in my brief and reply, we would request that this petition be dismissed with its entirety and with prejudice.
>> Thank you, councel. I have a couple of factual questions before I turn to Mr. Praink. Um there was submitted in materials from one side or the other a will dated 1227 of 24. It's my understanding that you are saying that the will that you wish to have used is dated 127 of 24 not 1227 of 24. I believe it was 1227 was plaintiff's exhibit or petitioners exhibit number 12. Um, why the difference in the dates? Was that simply a mistake uh on the writing of it or what was the deal there?
>> It was a mistake on the writing. It was testified by both the attorney as well as the witness, Miss Cheryl Goff, that they were there on the 7th and witnessed um deedent sign the will.
>> So, there's no subsequent will. It was all signed on December the 7th. Uh there was no subsequent attempt to make a a different will of any kind on the 27th.
>> No, your honor. There's just the will signed on December 7th of 2024.
>> All right. And then to make sure I understand your argument as to undue influence, you mentioned that there was no fiduciary relationship. Um, was there a the durable power of healthcare? Was that signed at the same time as the will on December the 7th?
>> Yes, your honor.
>> So, leading up to that will signing, there was no other power of attorney of any kind between Mr. Mercer and the deedent? No, your honor. And there that is the only power of attorney. There is no other durable power of attorney.
>> All right. Thank you very much. I appreciate that. Uh Mr. Pastrink, your response.
>> Thank you, your honor. Um I apologize ahead of time if I get too uh excited uh in this argument. Um before I forget, just to clarify, the fiduciary duty or fiduciary relationship is not dependent on a power of attorney. So one can exercise that relationship u de facto which happened here without a durable power of attorney for finances.
Now my understanding is that one was executed. Uh I'm if opposing council says that one was >> de facto fiduciary. Oh it's getting hot now. Woo.
Talk dirty to me.
>> Not I'm I'm not going to call her a liar. But um I would indicate that you do not need a written dural power of attorney to participate in a fiduciary relationship and as the court can see uh in our response brief there was clearly a relationship that formed unfortunately between Mr. Mercer and the deedent.
Um our brief explains uh in in detail the law and the facts supporting the lack of capacity. Um respondent wants to limit the determination of the day of but as the court of appeals has clearly indicated.
You can look up to in certain case five years before to see in a totality the circumstances for lack of a better term whether or not the deedent at the time of signing had the capacity to sign the will. again is detailed in our brief.
You clearly did not. It's I I think it's it um is common sense that you're having difficulty in your cognition if you think that you just fell in a lake and didn't.
If you forget that you closed a bank account two days ago, uh if you forget that you actually settled a property line dispute 12 years ago, there's something wrong with your mental capacity. And it was for that reason, with that diminished mental capacity, that Mr. Mercer was able to take full advantage of my client's father.
You, the court, heard that there was no testimony to support dementia, and yet my response brief is full of it. And the response brief is only 20 pages, but there are hundreds of pages of deposition testimony that indicate there were issues with Mr. Lazlo's uh capacity. You can look at my client's deposition for the most details, but it's it's without and throughout.
>> I get what he's saying. I do and it all makes a lot of sense. But I I would avoid referring to my own brief as being full of it. It's it's a poor choice >> about the other depositions.
Um you'll see in the the court will see in the reply brief that Mr. Mercer and heard the court also heard from opposing council today the continual slander of my client which I'm offended. I'm sure she is and I I hope the court is. The court will look through the >> Mr. Pastrink, let me let me just tell you one thing real quick about me. I'm not impressed by arguments about what I should feel or how I should feel them and I don't really care what you feel about things either. So, tell me some facts and let's stick to the facts, please.
>> So, in the reply brief, the respondent's attorney can >> go judge. I love it. F your feelings. By the way, he's gotten good argument and he's doing a nice job. But but no, we don't need this side detour about feelings.
Crammit it with the feelings. Let's get to the facts.
>> Continues the slander of my client by indicating uh on page uh I'm sorry, page four of the reply brief, she says things like daughter who took advantage quote unquote stealing money. Something was wrong. Stealing money again. Uh on page five she says quote because she betrayed his trust. End quote. Then she says quote because of what Diane had done.
And the court will not see one.
>> What I would give for him to say and and right here he says quote super gay.
>> One fact in the record of anything wrong that Miss Diane Gilton did.
There was no money missing anywhere in the accounts. Uh opposing council continues to state that the court won't see any money missing.
Attorney Gene Mahalik Weiss told Mr. Lazlo repeatedly that there was no money missing.
Mr. Lazlo authorized the reimbursement of travel expenses so his daughter could visit him from Florida.
When Mr. Lazlo objected to uh or or brought up the this amount of money, this $29,000.
His attorney continually corrected him and told him that there was nothing wrong with the money and that he had authorized it.
>> Mr. Press, I seem to recall a letter from Ms. the attorney to your client stating that there were financial I don't I forget the word that she used but there were financial issues. Um so where are you in the record getting these allegations that you're making now?
>> I would I would on that note I would emphasize and request that the court read our brief very very well because the details are spelled out chronologically. So what I say now is not going to be as well as is written chronologically. But if the court will bear with me, I will go back to the brief and and answer that question.
>> So show me in your brief where it's at.
>> On page five, the second full paragraph, it states, "In May 2024, respondent told Joe that the CD was deedent money and that he should get bank statements to see if uh other money was missing."
Respondent also encouraged Joe to retain Ms. Mahala to make changes to his estate plan. and respond then started calling Diane and accusing her of taking money from her father.
That's when this started.
>> How does that support your claim?
>> The court then turns to page six of our response brief.
>> What on page six?
>> Thank you.
The last paragraph that starts on July 18, 2024, a telephone conference was held with Joe, Miss Mahalik, Diane, and Doug.
>> I I read that paragraph. I I see no citation to any factual basis. Where where in the depositions where in the submitted documents do I find corroboration of that?
Diane Gilpin's deposition testimony >> where I don't see it cited anywhere. When I tried to find it myself, I couldn't. In addition to that, when I compared it to Ms. Mahalik's testimony in a deposition, Ms. she denied that Diane did nothing wrong regarding the expenses. So, I've got at best I've got your client making self-serving claims about that issue, that there was no financial issues going on. I've got the attorney who changed the will for her one time and against her another time saying that there were financial issues.
So >> go ahead, sir.
>> Yes, the court will see in a chronology again on on page six and beyond. What happened was Miss Mahalik reiterated uh to uh Mr. llo that there was no missing money that he had authorized the ex the reimbursement of the travel expenses that this account was a joint account owned by Diane Gilpin and that's not apparently acknowledged in any of Mr. Mercer's pleadings.
>> Where is that found in Ms. Mahalik's dep deposition?
>> Okay. Um I'll switch to that. I have the transcript of Miss Gilpin's deposition pulled up. I'll I'll keep that up. I'll move over to Gene Maholics.
I'm sorry. Could the court repeat the question about Ms. Mahalik?
>> Yeah. You said Ms. Mahalik told your u Mr. Lazlo a number of times that there were no money missing.
Where is that found in Ms. Mahalik's deposition?
>> You better not be driving. You better not be driving.
I'm not bailing you out.
I made that drive recently. It's too far.
Of course, if you were across the street, I wouldn't bail you out either.
>> It's not there, your honor. That's the That's the alarming part.
>> You're right. That is an alarming part for you. Why? Why would that be? I don't I don't understand what you're trying to claim then.
>> Well, M. Mahalik said one thing to Mr. Llo. He said he said, "Joe, you authorized this reimbursement of travel expenses. I've looked at all of the travel expenses. They're legitimate."
And then she says, uh, to Diane, >> who claim Who claims that? That she said that they were all legitimate. Who claims that?
>> Diane Gilpin, your honor. All right. So, your client says that Ms. Mahalik said one thing. We get Ms. Mahalik to the deposition and she says the absolute opposite.
>> Correct.
>> Why is Why is that a lie on Ms. Mahalik's part? Why isn't it just a self-s serving statement on your client's part?
>> Well, because it's the truth is the truth, your honor. I That's why.
>> No, because I'm telling you the truth. I I'm very gay now. And >> so I've got two diametrically opposed things. I've got one party in interest.
I got one party that's not does not have an interest in this case. Which one am I supposed to believe?
>> Well, that's called that's a genuine issue, material fact. The court has to determine credibility.
>> Fantastic.
>> All right. Go ahead, sir.
>> Thank you. I mean, you know, it's not good that you're married, but if you're going to at least put her to use, you know, driving you while you're drunk, that's that's good. I can I can get behind that.
>> Um, so as part of that umology and order, after um she indicated that all the expenses were legitimate to to Joe, he then got upset. And again, this this goes on and on um in our statement of facts, which is long for this reason so that the court knows what was said. When then she changes her mind, >> for the record, Uber is a lot a lot cheaper than a wife. A lot >> some point when Joe uh was not getting >> I've done both. Okay.
>> The response that he wanted from Ms. Mahallet. He then threatened to fire her. At that point, she then writes a letter uh to Miss Gilpin and says the exact opposite as the court observed from what she had said before. I'd also point out that Mr. Mercer is good friends with Ms. Mahalik.
Mr. Pradink, is it true that Ms. Mahalik, did the will change for your client uh from on April 9th of 24?
>> Yes.
>> And isn't that before Mr. Mercer got involved in this matter?
>> Yes.
Well, I shouldn't say that. I No, she she prepared the will because he wanted a new will. So, no, he was involved before.
>> This is This is the will. 4924 will is the will that left everything to your client.
>> That's correct.
>> Did didn't she? Ms. Mahalik drafted that will.
>> Yeah, but she got her name. Ms. Gilpin got the >> Oh, good lord.
I get it. You're making a joke. But if you had that scenario, it would just be absolutely insufferable. It's not worth it.
>> The name from Mr. Mer.
>> She didn't know Mr. Apparently, she knew her well enough to to say, "Go ahead and draft a will for me." That leaves everything to me.
>> M Miss Mahalik, let me back up. Mr. Mercer recommended Ms. Mahalik to Diane Gilpin and said, "Does does your dad have a will?" So then Diane Gilpin, who didn't know Ms. Mahalik at all, said, "Well, I can schedule an appointment."
So she schedules an appointment, shows up, then Ms. Mahalik has another appointment with with Joe without Diane and then drafts the will >> but no relationship before Mr. Mercer.
>> Sorry, it depends on >> she's using that same attorney to draft a will for her that ultimately benefits her 100%. The will previous to that was in November of 23 and she only had 85% going to her. three 5% was going to each of the three sons at that time. So I how am I to conclude that there's some undue influence between Mr. Mercer and Ms. Mahalik if your client's one that used that same attorney to draft a will that went in her >> uh he's not perfect but this judge is damn good. He's got a good BS detector >> favor.
Well just a couple things. One, Miss Gilpin did not retain Ms. Mahalik for the will. It was Mr. llo and and also again the the undue influence is is extremely obvious if you look at all the facts as laid out in the response brief.
>> Well, I have no idea what you're talking about.
That sounds terrible. I can't I can't imagine any YouTuber would engage in such a such a stream.
Okay. Um, on that note, let me let me go through that. I'm I just want to make sure the court knows where I'm coming from here. So, on page 14 of our brief, we explain undue influence.
>> Yep.
>> Okay. Okay. So, a presumption of undue influence arises if the evidence establishes the existence of a confidential or fiduciary relationship between the grtor and a fiduciary.
>> Okay. Okay. Okay.
I'm kidding. The stream is called singing what? What in the butt?
While hooking up with the village people, >> the fiduciary or an interest which he represents benefits from a transaction.
And three, the fiduciary had an opportunity to influence the grtor's decision in that transaction. So in this case, Mr. Mercer uh satisfies those three elements and a presumption of undue influence would arise.
>> Tell me in specifically how he satisfies those three requirements. I want to make sure we've got a good record of that.
>> Okay, so if we go back, this is on page four of our brief. In March of 2024, Diane attended Joe's 96th birthday celebration. At the party, Mr. Mercer asked Diane, "Does does Joe does my grandpa your father?"
>> Okay. I actually once, this is a celebrity encounter. It was a heavy duty celebrity encounter. Happened at Midway Airport. I believe I've told this story, but I don't know. I once met the guy who sings What, What, and the Butt. And I'll tell you where I met him.
at the airport. Not O'Hare. Oh, no. At Midway Airport, I was with my ex, the she beast, as she shall be referred to from here on forward. I was there. We were on our way to Cancun or some damn thing. We were at Midway and we had just watched TSH.0 2.0 or whatever the hell that show was and they had just had this guy on. So, I didn't know who he was cuz I just watched it like the night before.
It's like six o'clock in the morning.
I'm not awake yet. I look up and I'm like, "Oh my god, that guy looks like what? What in the butt and I was so I was so taken by I didn't even whisper it. I just said it like not I didn't yell it. I just said it but like at conversational tone and he rolled right over and he's like, "Yep, that's me." And it was it was him and we had a laugh and I shook his hand and uh we went on our trip. The end.
>> Father have a will.
She then told him that her father had just drafted one several months prior.
>> He was a nice guy with good sense of humor. He was totally cool.
>> So, we've already got a will. Mr. Mercer then >> and was dressed as a flight attendant.
So I think he was working >> and says, "Oh, you you should he should get a new one and you should go to my good friend, Miss Gene Mahalik Weiss, to draft it for you."
>> How does that information get into one of these three elements? That's what I'm asking you. I want you to walk me through what facts explain which element. How does what you just said connect to the dots?
>> Sure. Um, the next thing would be on page five.
>> No, tell me what happened on page four.
What were you? You just told me a bunch of stuff. He asked about a will. Said you need a new one. How does that connect to one of the elements?
>> He's developing a fiduciary relationship and a confidential relationship with Dian's father.
>> How so?
>> What? Well, your honor, I mean, if if you're going to ask someone to prepare a new Hey, if you go you your dad's already got a will, but you should go get a new one. He should go get a new one. Talk to my friend.
That was Anyone would be suspect of that.
You're You're going to have to do better than that by telling me anybody would because I'm not. How does How does that establish a confidential or a fiduciary relationship? And he's not he's not talking to the deedent at this point, right? He's talking to your client.
Well, I want Yes, your honor, but I want to be clear for the record so the record is clear that undue influence, the court would look at the totality of the circumstances to look to see if these elements are met. So, in addition, >> so in addition to what I said on page five, um, in late April of 2024, this is after the conversation of Mr. Mercer saying, "Hey, he should get a new will."
Then all of a sudden, Joe Lazlo starts accusing his own daughter of stealing a tray of gold coins from a cedar chest and a sock of half dollars from his safe. In reality, there never was a tray of gold coins in a cedar chest, and all his coins had always been in his safe.
So, we don't have >> Go ahead.
>> Sure. So, we don't have any accusations before, but now we've got accusations.
So now Joe is accusing his daughter of doing something wrong. She never did anything wrong up until this point. The court will never >> I I still haven't seen any connection between confidential or fiduciary relationship between Mr. Mercer and the deedent.
>> Okay.
All right.
So you'll see, let me put it this way.
If the court reads the statement of facts, the court will see that throughout these months that are are going on, Mr. Mercer is spending more and more time with his grandfather.
During the times he spends more time with him, the following days, he will start accusing Mr. Lazard, accusing his own daughter of doing things wrong. You broke my porch.
>> How do you know that? What proof do you have of that? That he got that from Mr. Mercer?
>> Oh, I I we don't have we didn't have proof that he said these things or what was said during the weekends. We do not know. What we do know is what happened.
>> So, you've got Mr. Lazlo, the deedent, accusing your client of stealing from him, but there's no connection of any of that information to Mr. Mercer, >> entire connection. Correct. So if there's no allegations of any wrongdoing and then your father starts spending time with a third party who before then did not have this relationship but starts to spend more once he finds out that there's a will involved and then following these this time spent there are allegations coming from your father whom you've known your whole life you know that there's some connection between why is he alleging things and again I want to repeat to the court the court will not see one thing wrong that Diane Gilton did. So there's no basis for Mr. Llo accusing her of doing anything wrong because there isn't anything that she did wrong. But for some reason after he spends time with Mr. Mercer, he starts accusing my client of doing something wrong.
>> How do you know that this happens after he spends time with Mr. Mercer?
>> Again, it's it's explained in the brief, but because my client testified to that, >> how did that That's what I'm asking. How did she know? Because she didn't have any contact with her dad after uh what, May of 24 and only had maybe phone contact up until October of 24.
How does she know this? I know she I know what she testifies to, but that How does she know that?
Is the court ask me how she knows when her father is spending time with Mr. Mercer?
>> Yes, >> she talked to her father.
Where's that in the deck?
>> The pages. It's 94 pages, your honor.
It's all It's all throughout it. I promise. I mean, I can if the court wants, I can look through it. Now, >> let's assume for a minute that what you tell me is accurate and that there is a connection between Mr. Mercer being at the house and talking to the deedent and the deedent then making allegations against your client. How does that prove a confidential or fiduciary relationship between the deedent and Mr. Mercer?
>> Sure. So, your honor, if if somebody's looking through my finances, and if I say, "Hey, Kevin Mercer, look through my finances." And he looks through my finances and looks through everything, he knows my assets, he knows how much money I've got, he knows everything about me, there has now been established a confidential and a fiduciary relationship.
>> How so? Just because I talked to you about your finances, I'm now a fiduciary for you.
>> I don't want to argue, your honor, but it's clearly a confidential relation.
>> No, this is the time for argument. This is exactly what this is for. You need to convince me that there is a fiduciary relationship here and I don't see it.
So, I'm that's why that's why I'm asking you. I want to be very pointed. I want to give you every opportunity to present your case, but don't just >> Yeah, that's a good point, Judge.
I mean ar an attorney during argument really shouldn't utter the phrase I don't want to argue >> gloss over stuff with me tell me what you know specifically >> it's a confidential or a fiduciary relationship number one the law >> so how is that either one of those two things >> well if if Mr. I mean I don't want to state the obvious but if Mr. Mercer is looking through Mr. llo's finances and his checkbook and his bank accounts and his looking at his CDs. Uh if he's doing looking through his finances, that's confidential. That's a confidential relationship. That's that's the definition of it.
>> Not if he allows it to happen. It's not confidential. If he says, "Here, take a look at" and and again, how do I know how do you know that any of that happened?
>> Well, He said so.
>> Who said so?
>> Yeah.
>> I I apologize, but I It sounds like the court hasn't read my brief, and I don't I don't mean that. I just want to indicate.
>> I read your brief twice. I've read it twice.
>> It's in >> I've read it twice. So, make a >> Oh, no you didn't. Oh, no.
He read your brief. It's not in there.
And now you're insulting the judge who clearly did read the brief. Oh no. No.
Oh no. You got to pull the rip cord before you let that come out of your mouth.
Oh no.
>> Record today. Tell me who said that.
>> Okay. Okay. Okay, on page 17 of the brief, uh the second full paragraph starts, respondent openly admits to beginning financial discussions with deedent in the early summer of 2024 and also openly admits that he impressed upon his grandfather that quote unquote something wasn't adding up. Governor Mercer testified at his deposition.
Quote, so the only thing I could say is that I had recommended early on, I would say early on being in May or June of 2024 that he speak with Diane. You know, because my natural assumption was that there must be a misunderstanding.
You know, I just felt like, you know, maybe there's just something that's not adding up here that he would need to speak with Diane about. So, I highly encouraged him. I said, you know, grandpa, just speak with Diane. find out, you know, maybe there's something that just, you know, whatever.
Something's not adding up."
>> End quote.
>> And I read that and I thought, "That doesn't sound to me like a detailed financial analysis of anything. That sounds like a grandpa and a grandson having a conversation about grandpa thinks the daughter's stealing from him and gr and grandson says, "Hey, grandpa, talk to her. Find out what's really going on."
I don't I don't see a confidential or fiduciary relationship there. That sounds like a normal grandma or grandpa and grandson conversation when grandpa's upset about thinking that daughter's stealing from him.
>> Okay. So uh again um as I continuing on on page 17 it states according to respondent as they went through the bank statements together it was quote very clear that money was being taken out of his account without his knowledge or permission end quote.
Respondent influenced his grandfather's understanding of the finances in the account. He testified. Kevin Mercer testified. Quote, "So as he and I went through the bank statements, he would see transactions that were being performed that he realized were not without or excuse me did not come with his authorization or his knowledge and that was very upsetting to him." End quote.
>> Okay. So again, how does that establish a confidential grandpa is showing grandson the bank statements? How does that establish a confidential or fiduciary relationship? Is Kevin Mercer taking any money out of those accounts? Is he doing any financial dealings with it? Is he getting grandpa to take money out and give it to him? Is anything like that benefiting Mr. Mercer at that time?
Your honor, he inherited the inherited Mr. Llo's estate.
>> Not yet. He hasn't.
>> He has a house. He has all his money. He had his car. Everything.
>> That's That's after the fact. You're saying you're looking at this through the lens of after the fact. At that time, how do I establish that there was a fiduciary relationship then? Because that's the only way this works. I can't do it from I can't reverse engineer that from the backside. I've got to find that there was a fiduciary relationship then that he used to undo the influence.
That's where the presumption comes in that there was a fiduciary relationship and that because of that fiduciary relationship we can presume that there was undue influence.
I can't look and say, "Well, the will ultimately gave him this, therefore there must have been a fiduciary relationship." That sounds to me what you're asking me to do. I have to see that there was a fiduciary relationship.
So, I'm asking you to lay it out very clearly. Where is the fiduciary relationship?
Well, your honor, I I would argue number one that I've already demonstrated it and that my brief demonstrates the confidential at least relationship. I would argue that it also demonstrates a fiduciary relationship and also would also indicate uh that that this is for the presumption to arise. Okay. So, uh, even if the presumption doesn't arise, that would still be, uh, a legal point, uh, or a fact that would need to be established at trial. Um, but yes, as as the court looks through the totality of the circumstances, looks through the documents, hear the record before the court, uh, uh, you will see, uh, I would argue that there is a clear confidential relationship. If Mr. Lazlo is doing whatever Merc Mr. Mercer says, that's a fiduciary relationship. That's a confidential relationship. And as the court will see that there was uh there was at some point all of the um uh Mr. Lazlo revoked the power of attorney he had given to Ms. Gilpin at some point and sent that to Ms. Mahalik.
So she acknowledged that and so he no longer for as far as I know if Mr. Mercer didn't uh did not have the durable power of attorney. Mr. Lazla had no durable power of attorney and the only person that I can see in the record that actually assisted if not conducted Mr. Lazlo's finances was Mr. Mercer.
>> Is that an inference that you're drawing or do you have some specific documentation or testimony that supports that allegation?
>> No, lots of specific testimony. You'll see that in the depositions of Ms. Gilpin. You'll see that in the deposition transcripts of Mr. Llo's sons. It's in there as well. And how would each of those know who is conducting the financial business? The sons are out of state and Miss Gilpin is what the number of hours away from where this is supposedly occurring. How are they to know that?
>> Well, Mr. Mercer was the one that in that um informed one of the sons, I think it was Joe, uh that Mr. Lazlo had died.
He was he was making the announcements.
He was making the decisions in the uh hospital. He was giving providing the notices to everyone. I'm not aware of anyone else. So, if there was no anyone else, then it has to be Mr. Mercer.
How does providing a death notice show that he was doing financial things for Mr. for Mr. Llo?
>> I don't think it does, your honor.
>> Well, that was what my question was. How would the sons and your client know that Mr. Mercer was doing financial conducting financial business for the deedent when they were states away and hours away and didn't have any contact with their dad directly for months prior to his death.
I want to be clear that I'm not arguing that I have evidence that Mr. Mercer signed checks for Mr. uh Lazlaw. I I don't know if what he did that. All I'm arguing is that pursuant to the the common law, he had a confidential he had a very clear and obvious confidential relationship with Mr. Lazlo with the deedent.
>> If you're satisfied with this record, go ahead and continue your um argument.
>> Thank you, your honor. So this case uh is a prime example of undue influence that someone that with a lot of of craftiness uh can create this tragedy.
And again if if you have a relationship here, a strong relationship between the deedent and and Miss Gilpin, she cared for him. Uh uh he cared for she cared for both of her parents for years.
Um she um paid for funeral bills, she paid for travel, she came up often, she took care of her mom, she visited often.
Uh very close relationship.
And the record demonstrates that that relationship was severed. That when her dad died, her dad was upset with her for things that she never did.
It's not that money was missing and we don't know who the culprit is or that my client is blamed for this missing money.
There is no missing money.
Mr. Llo asked Diane Gilpin to buy the CD. He said it's your money anyway. He added her as a joint account holder. M Miss Gilpin owns the the account from which she's accused by Mr. Mercer of taking money out of it's her account.
And so th this is a tragedy that that because of Mr. Mercer's opportunity and undue influence is not an easy thing to show. Uh as the court will see, there's a lot of work that has to go in to unw unwind the actions of someone who decides to go in and step into uh someone else's lives and to take away Miss Gilpin's father from her. He died without her even being notified. She wasn't notified that he was even in the hospital. She couldn't go to see him because she was mad at him or he was mad at her for things that she never did.
Um it's uh it's unfortunate that these things happen. U this is a clear case of undue influence. Fortunately, our our common law has a cause of action for this and this case fits it. Uh and for that reason, we're asking the court to enter summary disposition in favor of Miss Gilpin or at least to find that there are genuine issues of material fact that would need to be adjudicated at trial. Thank you.
>> Miss Haynes, any response?
>> Yes, your honor.
uh your honor with respect to the undue influence even going back to again the presumption that arise there is no fiduciary relationship in this case there's been zero evidence of that um there's no evidence that Mr. Mercer was assisting him with um the typical things that arise with a fiduciary relationship, taking him to appointments, doctors, like acting as a caretaker in any way, acting as a personal banker in any way. There is no evidence of that. Um second, so he he's failed to meet that initial burden. And then again, your honor, we are here today on a motion under MCR 2.116 C10.
Uh meaning that at this point in time we are requesting that excuse me that um here where the burden of truth at pri at at trial on a dispositive issue rests on the non-moving party which in this case is petitioner that party may not rest upon mere allegations or denials of his or her pleading but must by affidavit or otherwise provided in this rule set forth specific facts that showing a genuine issue for trial. Those specific facts also have to be admissible in this matter, not hearsay. Uh what I've heard in respondents, I'm sorry, in petitioners oral argument today was a lot of hearsay that is not otherwise admissible in this matter. Um so again, back to the issue of undue influence here, the presumption does not arise. And furthermore, again, there there's just absolutely no evidence that this occurred. Um, Mr. Mercer lived several hours away. He visited his grandfather maybe once a month if not more. Um, and again, petitioner is ignoring the fact that Decanted was the one who approached Mr. Mercer to ask him for help. He also is completely ignoring the fact that all throughout this time Deven had independent counsel that he visited on several occasions and that he asked to go over this with and he asked for his assistance with. He became angry with petitioner. He believed he was she was stealing from him. Other people were corroborating the fact that she was taking money. And again, this as to the fact that it's a joint account. She was placed on that account and she testified to the fact that she was placed on that account. for the specific purpose of assisting um her father with paying bills, not so that she could spend it however she pleased. She also admitted that she did not put any money into that account. Um so again, we are requesting that we have summary disposition on respect to the undue influence claim and have it um be dismissed with prejudice. Uh back to the lack of capacity argument again.
It is judged at the time that the deed and the other documents were signed. At that time his attorney was present, his attorney testified that he spec or I'm sorry that she specifically went over everything and she stated that she had absolutely no question in her mind whatsoever that Joe the deedent knew what he was doing on that day. Um, again, the witness as well, his neighbor, Miss Goff, also testified that he knew what he was doing. He had expressed to her the wishes for this changing of the of his will several times prior to that. And this wasn't a situation where on December 7th, he decided to change his will. This was over the course of several months. And he expressed this to Miss Michelac Weiss, I believe it was October 25th of 2024, that he wanted to go about changing his will. the the timing of signing it was just delayed by several factors. Um here uh petitioners failed to present any admissible documentary evidence establishing her claims. Again, at this point, it is not a a trust me standard or we'll produce or we will present the evidence at trial. This is the time.
Today is the date to present the evidence and it's not there. As such, we're requesting summary disposition as to the lack of capacity as well.
Thank you.
>> Final bite the apple, Mr. Press drink.
>> Yes, thank you. I just wanted to indicate that um uh and just just reiterate that uh the presumption of undue influence can arise if there is a fiduciary confidential relationship. So, uh I'm arguing that that does exist, but even if that doesn't exist, that doesn't it's not a requirement for undue influence. Um that it's a it's a process rather than a specific event. That's what the court of appeals has held. And so, and it's you have to look at the totality of the circumstances. So, I just want to indicate that um another way to to say this is you have someone uh my client who is uh very clo was in a very close relationship with both of her parents and then she's disinherited and we have to ask why. Well, what did she do? And if we look at the record, she hasn't done anything wrong. In fact, the one thing that she's alleged to have done wrong, Mr. Llo's own attorney um um confirmed was what he wanted.
And so we have to say, well, I if if this if we have someone that's been disinherited entirely and given to not he didn't give us estate to one of his sons, a grandson, we have to ask why.
There's some reason why there something's not adding up here. Um and that's why uh this this claim of undue influence uh is important because it allows us to show that sometimes u people use the manipulation. They see someone in a diminished capacity. So again, even if the court doesn't find that Mr. Lazlo lacked testimentary capacity, which I think is clear, but even if not, he was clearly in a diminished capacity. Mr. Mercer found him in that diminished capacity. he took advantage of it and he was able to walk away with the entirety of of the estate and he was even able to sever the whole relationship between my client and her father which is a tragedy and so for that reason we're asking the court for relief. Thank you your honor.
>> Mr. depressed drink.
Let's assume for a minute that a 96 year old man gets a wild hair and believes even improperly believes but he believes that his daughter is stealing money from him.
and then a family primary care physician and a doctor in the hospital on the day that he signed the will, the new will and a neighbor who visited him five times or six five or six times a week or so in the last six months of his life and an attorney all say that he was competent to sign the will. How do I show that he had a diminished capacity such that he couldn't properly do a will?
>> Um I I think again the case law that we submitted as part of the brief um in it discusses this issue and the court of appeals said in that case that um forgive me your honor. Um well, one thing that's important is regarding the opinion of a physician, the opinion of a physician as to mental competency, aside from the question of insanity, is entitled to no greater consideration than that of a layman.
That's one thing I would indicate. The other thing is that um darn somewhere in the brief, we've got a case that says you can look back five years before the time. And I think in this case the the court can do that to see these are extreme issues. This isn't you forgot what day it is. This is you think you just fell in the lake. You're dry. There's serious problems going on.
And I think that diminished capacity is there. I would also indicate that opposing council mentioned that we don't have admissible evidence and yet she's relying on the same evidence that we submitted to the court. She's relying on deposition testimony from Cheryl Gaw.
deposition testimony from G. Maholik Weiss. We're doing the same.
And and again, I think that this this undue influence, this is to be blunt, this is a um this is a difficult issue.
I have not seen a case like this before.
I don't think I even saw in law school.
This is something that th these circumstances define undue influence. This is when we have someone in diminished capacity. we have someone that that employs a long process to to uh unduly influence this person that's in a weakness. So if Joe Lazlo is saying, "Hey, someone's steal my money."
You say, "No one's stealing your money."
You you you told Diane, number one, this is this is Dian's account equally as yours and you told her to reimburse herself.
She did. Your attorney approved it.
Everything's good. But now someone comes in and says, "You know what, Joe?
Something's not adding up." Well, to someone with the diminished capacity, he starts to to to be paranoid. And as the court will see from the deposition transcripts of of Joe's other sons, he accused them of similar things of stealing a uh gosh, what was it? A waffle maker and a generator. And he said, "I didn't take any generator." He he didn't even have one. or you know there was two and he said to take one or whatever it was. But but again that this this case is why we have the account the ability to have undue influence. And again, one last if if the court would indulge me, if if if nothing else, I would indicate that we have to answer the question, why is he why is he disinishing Diane Gilpin? If Kevin Mercer is not in the picture and he just says, hey, you made a comment. You you used a swear word, you upset me because you attend my birthday party.
Honestly, if you look at the record, Diane Gilpin is a model daughter. She did everything that she could for her parents and yet somehow she loses her father who won't even talk to her, let alone the estate. But she loses her father. There's some reason here.
Someone did something.
>> Mr. Pastrink, is not that something the subject of the letter that Ms. Mahalik, the attorney, wrote to your client about the financial issues.
Is not that what caused all of this?
>> Yes. So, Ms. Mahalik again. Um, Miss Mahalik first says, "Joe, there's nothing wrong.
Joe, you you can offer >> according to your client."
>> Well, well, right. But your honor, with with all due respect, Miss Haynes is submitting the same evidence that I am.
Kevin Mercer's testimony is is just as as weighty as Diane Gilpin's.
And so, if if Ms. If Dian Gilpin is testifying under oath at the deposition subject to the penalty of perjury that Jane Mahalik says A, B, and C at the at at this meeting, you know, Mr. Mercer would have to to find some way to attack that credibility. But if that's the case, and and if it is the case, as stated in our brief, that Joe didn't like it when Gene Mahalik said, "Joe, everything's fine."
And he said, "Well, I'm going to fire you unless you do something." and then two days later she writes a letter that's 180 degrees from where she was before. Something's a miss.
>> Assuming that your client is true, your client is telling the truth, that is one way to look at it. But here's how I try to do things. I when I'm looking at who am I going to believe, I tend to throw out the competing interests and say, what do I have without the competing interests? that shows me which side may be telling the truth. And I come up with the doctors and the neighbor and the attorney, the doctors, the primary care physician that had known him for a long period of time says he's competent. The doctor at the hospital the day that he signed the will said his psych psychological affect was normal. the neighbor that had seen him for long periods of time and had knew knew him for months in advance of this says on the day that he signed it he's he's competent. So I I'm I'm those are my objective things. The attorney not only says that he's competent, but says writes in a letter that says that your to your client that your client is taking egregious actions on these financial issues. I I get it that your client disagrees with that, but I've got a a a disinterested third party, at least to some extent, who has a legal background saying that there is at least some questionable activities involved in this. And there's so there's a reason for a man to say, "I think you're doing the wrong thing here, daughter, and I so I'm going to disinherit you without necessarily having one side of the other unduly influencing them." There's an objective basis for the deedent to have that decision made. Tell me I'm wrong.
Well, um I I would indicate that at this point the undue influence already occurred that he when he makes that decision, he's already been influenced, not just influenced. He's been unduly influence. It's unfair for Mr. Mercer to step in and take this man who's vulnerable to say just the right things to to increase his paranoia. So when he makes that decision, he he's he's in a diminished state. He's been unduly influenced. Number two, I would say if the court looks at this will that stated there's two wills. One's on December 7 of 24, one's on December 27 of 24. He died before December. So we say, well, no, no big deal. Now, I've never seen this before, so I think it's a big deal.
I would argue that it is. And I would also indicate that I don't like to suspect attorneys of doing anything improper.
I've never seen it before, but now I have and I can't ignore it. Gene Mahalik Weiss is a is a and if the court looks at the the transcript of what she's testifying to, I I think it's well use the right word, but I think it's important to look at.
>> Oh, shut up.
>> It's suspicious at least. But Gaholik Weiss is one of the witnesses to this will. And it says, "We the witnesses sign our names to this will on the date that is first written above." and that is December 27, 2024.
So, if you're an attorney and you don't realize that your client just signed a second will, why are you signing two wills, by the way, and one of this has the wrong date? That's a big problem.
And then the other person who sent it is Cheryl Goff who testified of all the bad things that Diane did. And if the court looks at that and I said, "Miss Goff, if you knew that Diane Gilpin didn't do these things, would you have a better opinion of her?" Yes. Now, I'm paraphrasing.
She was told certain things about what what Diane Gilpin did. So, she thought Diane was the worst person. And there's if there's no evidence for that, then again, that's someone that's been unduly influenced in a different way. Not to use the term of art, but she's been influenced to think certain things about Diane that aren't true. And again, this isn't an easy case, and I'm saying it's easy, but if you look at it, this is the case of undue influence. This is the Hornbook textbook case.
>> Thank you, sir.
>> All right. Michigan statute defines sufficient mental capacity in MCL 700.2501 uh says that an individual 18 years of age or older who has sufficient mental capacity may make a will and subsection two of that statute says that sufficient mental capacity uh requires the following things. A that the individual had the ability to understand that he or she is providing for the disposition of his property after death. B that the had the ability to know the nature and extent of his or her property. C knows the natural objects of his or her bounty and D had the ability to understand in a reasonable manner the general nature and effect of his or her act in signing the will. The comments under that statute uh indicate uh that a person with some mental impairment uh or even for whom a guardian or conservator has been appointed could at the relevant time be of sound mind. the impairment or the presence of a guardian or conservator is not automatic disqualification from making a valid will.
Also in reviewing that statute uh case of a state of of Jenkins from the Michigan Court of Appeals in February of 2019 number 341 0005 says that a uh where a will has been challenged with testimony uh that the deedent was uh confused and paranoid during times both before and after the will. The court found this to be merely opinion evidence and insufficient to even raise an issue of material fact in the face of uncontroverted testimony uh statements of the testator's capacity from the attorney who prepared the will and from medical records contemporaneous with the execution of the will that the testator was alert and exhibited normal thought uh thought content. Uh and then it also goes on to say that an individual is presumed to have capacity to execute a will and affirm summary disposition in favor of the will's validity. Uh further in the estate of Michael Gerniac from the court of appeals number 277537 uh from June uh 24 of 2008 uh was a summary disposition case. uh summary disposition was was allowed. Uh it says that the moving party has the burden of supporting it with affidavit all the the normal summary disposition stuff. Uh and it talked about the person executing a will having testamentary capacity. Um same statutory information I just read to you um applied in that case as well.
said that testimeamentary capacity is judged at the time of the execution of the will and not before or after unless the condition of the testator before or after the execution of the will is competently related to the time of execution. Uh further went on to say that weakness of mind and forgetfulness are insufficient to invalidate a will.
It appears that the mind of the testator was capable of attention and exertion when aroused and he was not imposed upon. uh a testator may be suffering physical ills and some degree of mental disease and still executed valid still execute a valid will uh unless uh provisions thereof are affected thereby.
Uh circumstantial evidence in the this particular case uh that Gurnie suffered from mild dementia fails to establish any genuine issue of material fact as to his competence to enter into the challenge transactions in the face of uncontroverted deposition testimony from bank personnel. The gurniec understood the nature and consequences of the transactions that he entered into them knowingly and willingly.
Finally, in the estate of uh Pauline Renan from the court of appeals, December 17th, 2020, number 350595.
The argument was that the there was a the contestants failed to overcome the presumption that Ryan possessed the excuse me Renan possessed the requisite testamentary capacity to execute her will. Um it is presumed that a testator had sufficient capacity to execute a will. Uh the contestant of a will has the burden of establishing lack of testamentary capacity undue influence, fraud, duress, mistake or revocation. and whether a testator had the requisite testimeamentary capacity is judged at the time of the execution of the instrument. Not before or after except as the condition before or after is competently related to the time of execution. Further proof of old age, physical weakness or forgetfulness is insufficient to establish a lack of mental capacity.
In this particular case, as to lack of capacity, Miss Gilpin and her attorney have alleged that from April of 24 through about October of 24, uh there are varying uh things that in their mind show that uh the deedent was lacked the capacity.
Those include uh starting to become confused uh mistaken appointment in Paskki in April. Uh was accused in late April accused Diane of stealing a tray of gold coins and said that there was no tray in reality. In May of 24 accused a neighbor of stealing a garden hose u and their dock and then fell in the water and made allegations that he was fell in the water when he was dry. uh July of 204 accusing Diana.
>> I mean, you nobody likes it when someone steals their hose >> of stealing stealing $29,000 and again in July confused uh regarding accusing Diane of improperly taking money to use for her expenses and then July through October accusing her of other wrongdoings.
In my mind, all of those things are as the cases that I read to you um merely opinions. They do not directly connect to the day of the writing of the will and the competent testimony uh deposition testimony and doctor records indicating that the deedent was of legal proper legal capacity on the date that he wrote uh signed the will. Uh much of the accusations in this case come from Diane Gilpin alone or very much so from her and very limited other expenses. excuse me, other influences and they are contested um by the attorney who says the exact opposite on many occasions. And I don't want to get into a necessarily a legal excuse me a factual argument about those things because in my mind quite the fact that Miss Gilpin didn't have any contact with her dad physically uh since May of 24 when the will was written in December of 24 and then didn't have any contact at all either by phone or otherwise from October of 24 on uh shows to me that the allegations of lack of capacity are too far out away in time for them to have a a a concise connection uh to uh whether or not there was legal capacity to issue a will on in December of 24. Um I base my decision in that case on the state of Jenkins and the other citations that I gave in this opinion already. Um I I think they're too far removed in time because of the lack of contacts since October and May of 24 that there is no m issue of material fact and there as is the and there is a presumption of capacity. And then I have the uh primary care physician in November of 24, late November of 24 saying that there was legal capacity. I have the medical record notation of the doctor that was uh with the defendant on December 7th when it was signed in the hospital indicating that there was legal capacity. I have the attorney uh indicating that there was legal capacity and I have the neighbor who was the witness to the will all indicating that there was legal capacity. Given the presumption and that level of evidence and the distance in time of all of the allegations made by Miss Gilpin and the sons, I don't believe that there is any proper factual issue uh as to uh legal capacity and I'm going to uh grant summary disposition as to legal capacity. Moving on to undue influence. uh to establish an undue influence. It must be shown that the the granter was subjected to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower his valition, destroy free agency, and impel the grer to act against his inclination and free will. That's from the in the estate of Carmy from the Michigan Supreme Court in 2003. Quoting Carr versus Hogan from the Michigan Supreme Court 1976. A presumption of undue influence arises when uh the grantee had a fiduciary relationship with the student. Uh the grantee had an interest represented by the the grantee benefited from the will uh and the because of the fiduciary relationship the grantee had the opportunity to influence the deedent in giving that benefit. A fiduciary relationship is a relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of their relationship.
A fiduciary relationship can also exist when one person places faith, confidence, and trust in another person on whose judgment and advice the first person relies.
When the presumption is established, there is a mandatory in inference of undue influence that shifts the burden of going forward with contrary evidence into the person contesting the claim of undue influence. But the burden of persuasion remains with the party asserting undue influence. And that's from inmate Mardigian estate Michigan Supreme Court from 2018.
In addition, on the subject of undue influence, uh much of the same uh is quoted in the estate of Peterson uh from the court of appeals uh in 1991 uh which says gives the same definition of undue influence in the same um requirements three the same three requirements for uh undue influence saying there's a mandatory inference of undue influence shifting the burden Um however in this case uh the court held that the question that the court concerns itself is uh whether or not through this position that is the fiduciary position was he able to influence his mother. Um and that is a all right. So from all of that I deduce the requirement that there be number one that there be a fiduciary relationship and that it is because of the fiduciary relationship that the deedent was influenced to change or could have been influenced to change. Uh in this particular case um of the three requirements for a presumption uh fiduciary relationship the grantee benefits from the will and because of the fiduciary relationship the grantee had the opportunity influence I find that there was no actual fiduciary relationship between Mr. Mercer and um the deedent uh the healthc care power of attorney was not signed until the ex same day as the will December 7th of of 24. Therefore, there was no fiduciary relationship in that uh extent. Um Mr. Prank has argued that there was a fiduciary relationship before that given the connections, the review of the uh financial documentations and the uh alleged opportunity to change the deedent's mind about those things. Uh I do not find that that relationship meets the definition of fiduciary relationship that I read into the record earlier.
Fiduciary relationship is a relationship in which one party is under a duty to act for the benefit of the other on matters within the scope of their relationship. I find that there was no duty. This was a grandson and a grandfather having a conversation about the grandfather's financial condition. I don't find that the grandson at that time, Mr. Mercer, had a duty to act within the scope of that relationship.
This was driven by in my mind the grandfather uh who was angry at his daughter for perceived wrongs that he believed that she did. Uh I believe that that was uh any attempt or excuse me any opportunity to have an undue influence I believe was ameliorated uh by the fact that the attorney who had previously drafted a will that favored Miss Gil Miss Gilpin uh then took a look at the matter and drafted a letter to Ms. Gilpin uh asserting what the grandfather found to be and and uh claiming that there were financial issues. Uh so I don't see any duty on behalf of the grandson. I don't find any undue influence on behalf of the grandson. Uh and no fiduciary relationship occurred in my mind because of those things. The undue influence I believe is also negated by the fact of the uh family friend or the neighbor uh having access to um the deedent on a regular basis in the six months leading up to the in the his death. and the signing of the will uh and believing consistent with that uh consistent with the beliefs of the deedent uh that Miss Gilpin was doing these actions uh and uh further negated undue influence is further negated by the fact that the uh deceit the grandson was not present during the signing of the will uh and was a number of hours lived a number of hours away um and and had less access to the grandfather uh and not on a regular or daily basis for that reason. So for all those reasons, I find that there's been no issue of fact uh that could be found for undue influence uh and would grant summary disposition because of those reasons. Um Miss Haynes, would you prepare an order, please?
Thank you for your time.
>> James Simpson 26M2453.
If you look just for one second, I'll bring this back over to you.
>> Mr. Little is appearing for the people.
Mr. Michaels, did you see the updated retrial service report that was >> This is Law Nerds Unite's fault. file.
>> Uh, I didn't I'm not sure.
>> That also caught me by surprise. It was I think it changed the score. I don't know if everybody saw it.
>> I think it's the same score you're on.
>> It is.
>> I might have I might have only looked.
Yeah, they're both negative three high risk. I wasn't actually >> That's the one I looked.
>> Zach just throws in a gratuitous puppy.
I mean, you know, there are worse things.
>> That was the one labeled updated.
>> Okay, good. So, it's same one. I just saw that it was files an updated one and I it caught me by surprise. Anyway, go ahead. Uh Mr. Michaels, you're appearing in this case.
>> That's correct. And we wave further reading and advisement. U Mr. Simpson has not served in the military. Um no objection to the mandatory protection order, noting that there is a I guess a sort of a carve out in the last box to language in the Boulder case. Um with respect to bond, would the court like me to proceed to bond or wait for the MU advisement?
>> Yeah, one moment please. Uh sir, I'm appointing the office of the public defender to represent you while you remain in custody. Your attorney has waved rule five. There is no uh military status in your case and you this is a victim rights act case. So before I advise on the protection order, >> your honor, we are V compliant by attempts. It appears that present we don't have a good phone number for the victim.
>> Okay. And you're not asking for any modification?
Excuse me. right now. Um, correct, Mr. Magn.
>> Um, just out of an abundance of caution, I guess, a civil assist.
>> A civil assist. Any objection?
>> No.
>> Civil assist will be authorized. Sir, the protection order u this is an allegation of domestic violence. The party protector is Marina Ortiz with date over February 7, 1995. You should not harass, molest, intimidate, retaliate against, or tamper with any witness or victims of the acts that you're charged with committing. You should vacate a home of the victim and stay away from the home of the victims and their witnesses. And I stay away from any location the victims and witnesses are likely to be found. You should refrain from contacting directly or indirectly communicating with the victims and their witnesses. You should not possess, purchase or control a firearm or other weapon. You should not possess or purchase any ammunition. You shall relinquish for the duration of the order any ammunition or firearms that you may have in your possession or control. You submitted this affidavit, sir. You sign this affidavit on page two. On page one, you mark the box that states that you do not have any weapons in your possession or any weapons to surrender at all. Is that true, sir?
>> That is true.
>> Okay.
>> And uh I do find that there is a nexus.
There is an allegation of drinking. Um and there is a party protector in this protection order. And the court is um going to find that it's appropriate to check box seven which states that you should not possess or consume alcoholic beverages or control substances without a prescription.
You should you are allowed um contact with the other person pursuant to the conditions in 25 CR1536 which means whatever authorization you were given pursuant to the order and I'm sure I'm sure your attorney explained that to you. That's all you get here as well. If there is anything outside of that, um, this order only allows you uh, similar or consistent consistency with the protection order in the Boulder case. Does that make sense, sir?
>> Do you understand the conditions that I just explained to you?
>> Can you say yes or no out loud?
>> Yes, your honor.
>> All right. Thank you. And are you willing to comply with these conditions to become releasable on bond, sir?
>> Uh, yes, your honor.
>> All right. Thank you. Mr. Little, what is your position on bond? Your honor, given the free trial bond report reading of negative3 high risk and this being an M1 DV matter, uh the people ask for 5,000 cash assurity guidelines.
>> Okay. And we do have 26M1579 which was another case of violation of protection order that was entered back in March. I have reviewed the pre-trial service bond report. I know his score.
Mr. Michaels.
>> Judge, we are requesting a personal recgnissance bond. If the court is not inclined to grant a personal recgnissance bond, then a significant downward deviation um from that $5,000 guideline amount. One thing I would like to highlight for the court in this case is that Mr. Simpson was arrested on this warrant on May 5th and he is just now being brought in front of this court to be heard on bond. It appears that there was a previous outofcount date that uh failed for some reason. You know, it says in the minute order that the defendant didn't join. I'm not sure if that was that Jeff Co never joined or if Mr. Simpson himself didn't want to come to court that day. Um but he has not been seen on this case for I think 18 days now sitting on a no bond hold. Um I understand that the >> statoman Mr. Michaels let me double check something >> because I want to know that too.
>> Do you know what happened that day? Did they even try to put you on video? I will look back and keep but a lot of times we put them because they contacted us the defendant didn't appear.
>> But does that mean that we set them on blocking now?
>> Right.
Solving the problem.
>> Okay.
>> That's what it means. Okay.
Okay.
>> Yeah, if you don't mind. Okay. I'm going to I t my clerk to try to find out some of that information because I'm curious to do that as well to know that. Here is the thing. when we do have um and this was a juris this what jurisdiction was this was Jeffco >> Jeffco >> if that was the only case we'll we'll find out a little bit of information for you Mr. Michael sorry to interrupt you go ahead continue >> um my what for my discussion with Mr. Simpson. It sounds like he was just never even they never even attempted to put him on for video court. Um, you know, I do understand that the statute that requires a 48 hour bond hearing doesn't necessarily provide any remedy.
And I understand that it's not this court's fault that this happened, but I do think it's important for the court to consider the length of time that he has been in custody um without even being able to post a bond in this case or being advised of the charges against him. Um certainly I would expect uh if the resolution of the cases he has in Arapjo County were to include jail time, it would not be that much more than what he's already served on these cases or on this case in particular. Um besides that, Mr. Simpson has been in Colorado for the last 13 years, he's informed me that while he is not allowed to be uh share a residence with the protected party, um he will be able to live with a co-orker named Robin Hansen. He works at UPS loading and unloading um the delivery trucks and he's been at that job for two years and is familiar with the RTD system to get back to court with the protected party. He does share a son who is going on two years old and for whom he financially provides. Um I did take a uh look both at the pre-trial bond report and the other cases on data access myself. Um and Mr. Simpson has never failed to appear um to my knowledge in any case. Um Mr. Simpson.
Um I also understanding the allegations in this case, it it does seem like at the least the initial contact with the alleged victim um was mutual and consensual here. Um obviously that's not necessarily a defense to a protection order violation, but I think mitigating to some extent. Um so our request is primarily for a personal recgnissance bond or at least a very significant downward deviation given the circumstances here.
When you say a downward deviation, do you have a number in mind?
>> My request would be $1,000 cash assurity.
>> I got a downward deviation.
>> Give me just one moment because I have um just looking something up.
Just put me I have both advicements upstairs.
Okay.
Need to check something here.
This is I think this is the case where Jeff could never join.
>> Yeah, >> I don't know why that happens.
going to go on a rant now because it's really um concerning and I think I have had this discussion with both the prosecution and defense is that um we've done our job on our end to make sure that we bring these people to court and then the jail sometimes doesn't join and we don't know why there is no Did you find anything from We have some jails who tell us the defendant refused or they're not medically clear, but this is just not joining and I don't know why. Um I appreciate the record of there's not remedy and the thing is though that we cannot reset them for the next available docket because I've asked that on my team many many times.
Can we reset them for the next available? Because otherwise people just fall through the cracks, which is an issue. I don't think neither one of you want that. So, I'm very aggravated right now with this. I don't know why this happened, sir. And I'm I am I'm sorry that happened to you. I truly am.
>> It It jeopardizes my job.
>> It's almost three weeks of not being seen when I was there. And I was just going to say I'm not sure and I don't want you to make any statements. Not because I don't want to hear from you.
It's because you have an attorney who is speaking from you. So I can imagine waiting 3 weeks to be seen in court.
That's not acceptable. And I don't know the only thing the only remedy that I can do right now is allow you a PR bond with the conditions. Three weeks is a long time.
>> Thank you your honor. and I'm so sorry.
Um, >> I will go ahead and issue an email to see in what ears is going to fall. I don't know, but I will follow up on this. I don't think that's appropriate.
Um, if you can accept an apology from anyone. Sorry.
>> The judge handled this really well.
Having said that, I still find the accent funny. I do. I'm sorry. I'm sorry, but I do.
>> I'm sorry. Um, I'm hoping that you can get your job back. Um, but I'll go ahead and set a bond. I'm going to set it a guidel bond. It's going to be a $5,000 PR.
Going to make it a condition of the bond that you shall appear at every single court appearance.
>> Have you already done that?
>> You do have to come back for court on your case. I'm going to give you a next court day. Um, I've always been doing my should >> June 1st. Okay. So, it's going to be June 1st at 10:00 a.m. And sir, hear me out. While you may think that people are not able to hear you, I can hear you.
Your attorney is trying to say to you it's not okay, but there's really not much he can do right now. He's going to give you some information on how to apply for the public defenders. If you heard my argument here, my advisement is because a professional like Mr. Michaels can guide you on to make sure if your case is not whole, he can tell the judge this case needs to be on the docket. So the reason why I provide that, you can do it with the PDS, you can do it with a private attorney.
>> Yeah, you got screwed. The judge is on top of it. She's letting you out with an apology, which is appropriate. If you want to do something else, don't discuss that with anybody until you're a free man and not an earshot.
Okay. Okay.
>> But it's sometimes better to have a professional help you. I'm not saying it's a court order. I'm not trying to guide you to force you to do either way, but I that is probably Mr. Michaels can give you more information on that what his office does to make sure that you are put on the docket in European court.
Okay, sir. All right. Is there any other conditions that I failed to impose, Mr. uh Little that you need me to impose here?
>> Uh, I don't believe so.
>> Okay. Anything further, Mr. Michaels?
>> Nothing for us, Judge. Thank you.
>> So, June 1st at 10 a.m. in division 405.
June 1st at 10 a.m. in division 405.
Anything further for my clicks before I let them go.
>> Okay. Course in recess. Thank you.
>> That was an interesting one.
Well, thank you everybody. Thank you, Zach. Thank you, Bracken. Thank you, MGT. Thank you.
Uh, who else? Who else is doing this?
Hector.
I don't know. I'm probably missing people.
I'm probably missing people, but it's it's a holiday weekend.
I I was I was just going to skip days, but I I've had so many nuggets float in.
I It's Yeah, you know, I just I just uh stream them anyway. It's good times. I even got to go out and touch some grass.
I might do it again.
Thank you'all for coming out. I will see you soon.
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