DocketNumber： Docket 152655; Calendar 1
Citation Numbers： 917 N.W.2d 325, 502 Mich. 154
Judges： Markman, Wilder
Filed Date： 6/21/2018
Status： Precedential
Modified Date： 10/19/2024
Michigan Supreme Court Lansing, Michigan Syllabus Chief Justice: Justices: Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis In re MARDIGIAN ESTATE Docket No. 152655. Argued December 6, 2017 (Calendar No. 1). Decided June 21, 2018. Attorney Mark S. Papazian submitted in the Charlevoix County Probate Court the will and trust he had drafted for the decedent, Robert D. Mardigian, who was an unrelated friend. Melissa Goldberg, Susan Lucken, and others contested the documents on the ground that Papazian had drafted them in violation of the Michigan Rules of Professional Conduct (MRPC) because they made Papazian and his children the recipients of the bulk of the decedent’s estate in contravention of public policy and MRPC 1.8(c), which generally prohibits an attorney from preparing an instrument that gives the attorney or his or her close family a substantial gift. The court, Frederick R. Mulhauser, J., granted partial summary disposition in favor of the challengers, and Papazian appealed, arguing that Michigan did not recognize a per se bar on testamentary gifts to unrelated attorneys and that a breach of MRPC 1.8(c) supplied a basis only for invoking the attorney disciplinary process, not for automatically voiding a trust or will. The Court of Appeals, WILDER, P.J., and STEPHENS, J. (SERVITTO, J., dissenting), reversed, holding that, under In re Powers Estate,375 Mich. 150
(1965), the documents were not necessarily invalid, but Papazian was required to overcome a presumption of undue influence arising from the attorney-client relationship in order to enforce them.312 Mich. App. 553
(2015). The challengers applied for leave to appeal in the Supreme Court, which ordered and heard oral argument on whether to grant the application or take other peremptory action.499 Mich. 973
(2016). After hearing oral argument, the Supreme Court granted the application for leave to appeal.500 Mich. 1030
(2017). The judgment of the Court of Appeals was affirmed by equal division. Chief Justice MARKMAN, joined by Justices ZAHRA and CLEMENT, writing for affirmance, stated that, under the applicable provisions of the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., and the underlying principles of probate law, the rebuttable presumption of undue influence articulated in Powers should apply to these circumstances. A new per se rule that would prohibit an attorney from drafting an instrument that names himself or herself as a beneficiary would not only be contrary to the fundamental principles of probate law and longstanding precedents of this state, but would also run afoul of EPIC, whose underlying purposes and policies include the discernment and effectuation of the decedent’s intentions in the distribution of his or her property and whose express provisions require the contestant to bear the burden of establishing undue influence. The adoption of MRPC 1.8(c) had no effect on this conclusion because a breach of this rule only triggers the invocation of the attorney disciplinary process; it does not breach EPIC. Chief Justice MARKMAN would have affirmed the judgment of the Court of Appeals for these reasons. Justice MCCORMACK, joined by Justices VIVIANO and BERNSTEIN, writing for reversal, would have overturned Powers to the extent that it held that courts should apply a mere presumption of undue influence to a will contest in which an attorney drafted a testamentary document that names himself or herself as a beneficiary and would instead have adopted a per se rule of undue influence that voids substantial testamentary gifts to attorney-drafters. Justice MCCORMACK stated that a per se rule would reflect updates to the relevant ethics rules, probate law, and evidentiary presumptions and would ensure that a testator’s intent is effectuated by eliminating the possibility that the testamentary instrument was the product of undue influence, noting that the contrary approach would leave clients vulnerable, reward unscrupulous attorneys, and encourage costly litigation. Accordingly, Justice MCCORMACK would have reversed the Court of Appeals. Affirmed by equal division. Justice WILDER took no part in the decision of this case because he was on the Court of Appeals panel. ©2018 State of Michigan Michigan Supreme Court Lansing, Michigan OPINION Chief Justice: Justices: Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement FILED June 21, 2018 STATE OF MICHIGAN SUPREME COURT In re MARDIGIAN ESTATE. MARK S. PAPAZIAN, Executor for the Estate of ROBERT DOUGLAS MARDIGIAN, Appellee, v No. 152655 MELISSA GOLDBERG, SUSAN V. LUCKEN, NANCY VARBEDIAN, EDWARD MARDIGIAN, GRANT MARDIGIAN, and MATTHEW MARDIGIAN, Appellants, and JP MORGAN CHASE BANK, NA, Appellee. BEFORE THE ENTIRE BENCH (except WILDER, J.) MARKMAN, C.J. (for affirmance). At issue is whether the rebuttable presumption of undue influence is applicable when the decedent’s attorney breaches Michigan Rule of Professional Conduct (MRPC) 1.8(c), which generally prohibits an attorney from preparing an instrument giving the attorney or his or her close family a substantial gift. Appellants argue that a breach of MRPC 1.8(c) automatically renders an instrument void, while the appellee attorney argues that, rather than an invalidation of the instrument, a rebuttable presumption of undue influence arises in these circumstances. After considering the applicable provisions of the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., and the underlying principles of probate law, it becomes clear to us that a rebuttable presumption applies to these circumstances. And, as we will explain, creating a new per se rule as appellants advocate would not only be contrary to the fundamental principles of probate law and longstanding precedents of this state but would also run afoul of EPIC. Moreover, the adoption of MRPC 1.8(c) has no effect on this conclusion because a breach of this rule, like breaches of other professional conduct rules, only triggers the invocation of the attorney disciplinary process; it does not breach the statutory law of EPIC. For these reasons, we conclude the Court of Appeals correctly held that, in the instant circumstances, existing statutes and caselaw give rise only to a rebuttable presumption of undue influence. I. FACTS AND HISTORY On August 13, 2010, the decedent, Robert Mardigian, executed an amended trust that was prepared by appellee Mark Papazian, and on June 8, 2011, the decedent 2 executed a will prepared by Papazian. The amended trust and will operated to leave the bulk of the decedent’s estate to Papazian, who was a close friend of the decedent, and to Papazian’s children. On January 12, 2012, the decedent died. Following the decedent’s death, Papazian filed an action in the probate court and sought to introduce the amended trust and will. Appellants, who consist of the decedent’s brother, two nephews, two nieces, and girlfriend, challenged the introduction of these documents, moving for summary disposition and requesting that the probate court void all gifts to Papazian and his children as a matter of law. Specifically, they argued that the gifts were contrary to public policy under MRPC 1.8(c).1 The probate court eventually granted summary disposition in favor of the appellants and declined to admit the amended trust and will, explaining that it was “disinclined to enforce” documents that were prepared contrary to the MRPC. Papazian appealed, arguing that Michigan did not recognize a per se bar on testamentary gifts to unrelated attorneys and that a breach of MRPC 1.8(c) supplied a basis only for invoking the attorney disciplinary process, not for automatically voiding a trust or will. In a split decision, the Court of Appeals reversed the probate court’s order granting summary disposition in favor of appellants. Relying on this Court’s decision in In re Powers Estate,375 Mich. 150
; 134 NW2d 148 (1965), the majority held that it was “required to remand for further proceedings, in which [Papazian] will be required to overcome the presumption of undue influence arising from the attorney-client 1 MRPC 1.8(c) states, “A lawyer shall not prepare an instrument giving the lawyer or a 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 related to the donee.” 3 relationship in order for the devises left to him and his family to be enforced.” In re Mardigian Estate,312 Mich. App. 553
, 559; 879 NW2d 313 (2015). Pointing to the fact that Powers had been decided before this Court adopted MRPC 1.8(c), Judge SERVITTO dissented and would have affirmed the probate court’s ruling that the gifts to Papazian and his family were void as against public policy.Id. at 570
(SERVITTO, J., dissenting). Thereafter, appellants sought leave to appeal in this Court. We ordered oral argument on whether to grant the application or take other action and directed the parties to address whether this Court should overrule Powers. In re Mardigian Estate,499 Mich. 973
(2016). Subsequently, we granted the application for leave to appeal and directed the parties to address whether the rebuttable presumption set forth in Powers sufficiently protected a decedent and what role this Court’s later adoption of MRPC 1.8(c) should play in the consideration of the issue. In re Mardigian Estate,500 Mich. 1030
(2017). II. STANDARD OF REVIEW A trial court’s decision regarding a motion for summary disposition is reviewed de novo. Haksluoto v Mt Clemens Regional Med Ctr,500 Mich. 304
, 309; 901 NW2d 577 (2017). In addition, the resolution of this case requires the interpretation of statutes, which we also review de novo.Id. III. ANALYSIS
For the reasons that follow, both the historical framework under which we have analyzed gifts to attorneys and the current statutory framework, which codified the historical framework, require us to uphold Powers and its rebuttable presumption of undue influence, notwithstanding the later adoption of MRPC 1.8(c). 4 A. HISTORICAL FRAMEWORK One of the underlying purposes and policies of EPIC is “[t]o discover and make effective a decedent’s intent in distribution of the decedent’s property,” MCL 700.1201(b) (emphasis added), but this purpose long predates EPIC and is entrenched deeply within the history of this state’s probate law. Discovering and giving effect to this intent has been viewed as the foundational standard of probate law for centuries. See, e.g., In re Blodgett’s Estate,197 Mich. 455
, 461;163 N.W. 907
(1917) (citing seventeenth- century jurist Lord Coke for the proposition that a testator’s intent constitutes “ ‘the polar star to guide judges in their determination’ ”). See alsoid. at 461,
quoting 4 Kent, Commentaries on American Law (14th ed), p 534 (“ ‘The intention of the testator is the first and great object of inquiry; and to this object technical rules are, to a certain extent, made subservient.’ ”); Palms v Palms,68 Mich. 355
, 378;36 N.W. 419
(1888) (opinion by CHAMPLIN, J.) (“In construing wills, it is well settled that the intent of the testator must be ascertained and carried into effect so far as it legally can be done.”); In re Churchill’s Estate,230 Mich. 148
, 155;203 N.W. 118
(1925) (“In the construction of wills the cardinal canon, the guiding polar star, is that the intent of the testator must govern . . . .”). At the same time, however, “ ‘[u]ndue influence’ exercised upon one who executes a will may become the basis for finding the will invalid if that influence took from the testator his right to freely exercise his discretion in disposing of his property.” In re Sprenger’s Estate,337 Mich. 514
, 521-522; 60 NW2d 436 (1953) (emphasis added).2 This is because undue influence is “something which destroys the free agency 2 Similarly, “[a] trust is void to the extent its creation was induced by fraud, duress, or undue influence.” MCL 700.7406. 5 of the testator at the time when the instrument is made, and which, in effect, substitutes the will of another for that of the testator.” In re Williams’ Estate,185 Mich. 97
, 120;151 N.W. 731
(1915) (quotation marks and citation omitted). The burden of establishing undue influence has historically reposed with the party asserting it. In re Sprenger’sEstate, 337 Mich. at 522
(stating that undue influence “must be proved by the person seeking to have the will declared invalid”). And as this Court has explained: To establish undue influence it must be shown that the grantor was subjected to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel the grantor to act against his inclination and free will. Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exercised, are not sufficient. [In re Karmey Estate,468 Mich. 68
, 75; 658 NW2d 796 (2003) (quotation marks and citation omitted).] Additionally, there are occasions in which a rebuttable presumption of undue influence can arise: The presumption of undue influence is brought to life upon the introduction of evidence which would establish (1) the existence of a confidential or fiduciary relationship between the grantor and a fiduciary, (2) the fiduciary or an interest which he represents benefits from a transaction, and (3) the fiduciary had an opportunity to influence the grantor’s decision in that transaction. [Id. at 73 (quotation marks and citation omitted).] This rebuttable presumption has been said to apply to cases in which “a patient makes a will in favor of his physician, a client in favor of his lawyer, or a sick person in favor of a priest or spiritual adviser, whether for his own personal advantage, or for the advantage of some interest of which he is a representative.” In re Hartlerode’s Estate,183 Mich. 51
, 60;148 N.W. 774
(1914). For well over a century, this rebuttable presumption has been 6 applied to circumstances in which an attorney drafts a will providing that attorney with a gift from a client. See, e.g., In re Bromley’s Estate,113 Mich. 53
, 54;71 N.W. 523
(1897) (“[A] bequest in favor of an attorney who draws a will is a circumstance arousing suspicion, and raises a presumption more or less strong that undue influence has been exerted . . . .”). Most significantly, in Powers, this Court specifically discussed the rebuttable presumption of undue influence as it arises when an attorney drafts a will in his or her own favor. The will in Powers had been drafted by an attorney who was married to the decedent’s close friend, and it left substantial portions of the decedent’s estate to both the attorney and the close friend (i.e., the attorney’s wife). In re Powers’Estate, 375 Mich. at 155-157
. Powers began by recognizing the inherent ethical misconduct of the attorney: “If any prizes were to be awarded for dismal professional judgment, the proponent here would be in a fair way to be signally recognized.”Id. at 157.3
However, Powers 3 Although the MRPC was not in existence at the time of Powers, an attorney drafting a will who had undertaken to make a gift in his or her own favor was nonetheless well recognized as unethical decades before Powers. As the concurring justice in Powers explained: [T]his Court almost 60 years ago bluntly warned the profession against such conduct, in [Abrey v Duffield,149 Mich. 248
, 259;112 N.W. 936
(1907)]: By statute, a bequest to a subscribing witness, necessary for proving the will, is declared absolutely void (CL 1897, § 9268), and this, though the subscribing witness may be and generally is ignorant of the contents of the will. Although there is no statute to invalidate a bequest to a scrivener, the reasons are, at least, as strong for such a statute as in the case of the subscribing witness. I believe it to be generally recognized by the profession as contrary to the 7 proceeded to explain that the conduct of the attorney was not what was at issue; rather, the issue was whether the will itself was valid.Id. In light
of this understanding, the attorney-client relationship was only relevant insofar as it tainted the validity of the will: The issue of the relationship of the attorney and his client, and the attorney and his wife as beneficiaries, is an additional element in the broader concept of undue influence. Essentially it goes to degree of proof necessary to establish prima facie the opportunity for the exercise of undue influence and the ultimate consideration of that question by the trier of the facts . . . . * * * 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 the testamentary instrument . . . ; (2) The equally well-defined and well-recognized issue of the exercise of fraud or undue influence in the execution thereof, including any presumption created by the fact that proponent was deceased’s attorney and the fact that he drew the instrument . . . . [Id. at 157-158, 179 (emphasis added).] As Powers recognized, the focus of the will contest is to determine the decedent’s intention and not to judge and discipline the attorney’s conduct.Id. at 178
(“The forum in which to test unprofessional conduct of an attorney in this State is adequately supplied in the State Bar grievance procedure. The forum in which not to test it is a jury trial spirit of its code of ethics for a lawyer to draft a will making dispositions of property in his favor, and this Court has held that such dispositions are properly looked upon with suspicion.[Powers, 375 Mich. at 181
(SOURIS, J., concurring).] 8 determining testamentary capacity and undue influence.”). Thus, that an attorney drafted a will giving a gift in his or her own favor only affects the will contest insofar as that is relevant to the rebuttable presumption of undue influence and the determination by the fact-finder whether such influence had been exerted. In addition, our longstanding caselaw indicates that even when the rebuttable presumption of undue influence arises, “the burden does not rest upon the [proponent of the will] to show that the transaction was free from undue influence.” Hill v Hairston,299 Mich. 672
, 679; 1 NW2d 34 (1941). That is, the presumption historically did not shift the ultimate burden of proof to show undue influence. In re Bailey’s Estate,186 Mich. 677
, 692, 694;153 N.W. 39
(1915) (“It is true that a presumption is raised that calls for an explanation, but the burden of proof to show undue influence is not thereby shifted. . . . [T]he burden of proof to show undue influence rest[s] upon the contestant, and not the proponent. Such, we think, is the settled law in this State.”). See also In re Jennings’ Estate,335 Mich. 241
, 244; 55 NW2d 812 (1952) (stating that “there is no shifting of the burden of proof under the presumption” and “while it establishes a prima facie case in the absence of testimony on the subject, [the presumption itself] has no weight as evidence, is rebuttable, and cannot be weighed against evidence”).4 4 As this Court explained in Widmayer v Leonard,422 Mich. 280
, 289; 373 NW2d 538 (1985), although a presumption itself should not be weighed as evidence, the inferences drawn from the facts creating the presumption may be weighed as evidence: [T]he function of a presumption is solely to place the burden of producing evidence on the opposing party. It is a procedural device which allows a person relying on the presumption to avoid a directed verdict, and it permits that person a directed verdict if the opposing party fails to introduce evidence rebutting the presumption. 9 In summary, even when a rebuttable presumption of undue influence has arisen, this Court has held that it does not shift the ultimate burden of proof; rather, that burden always remains with the contestant. This historical framework remains in place today but has now been incorporated through statute rather than existing exclusively in caselaw. B. EPIC FRAMEWORK In 1998, the Michigan Legislature enacted EPIC, which became effective April 1, 2000.1998 PA 386
. As part of EPIC, the Legislature codified the applicable burdens of proof in will disputes in MCL 700.3407(1), which provides in pertinent part: All of the following apply in a contested case: * * * (c) A contestant of a will has the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. (d) A party has the ultimate burden of persuasion as to a matter with respect to which the party has the initial burden of proof.[5] Almost all presumptions are made up of permissible inferences. Thus, while the presumption may be overcome by evidence introduced, the inference itself remains and may provide evidence sufficient to persuade the trier of fact even though the rebutting evidence is introduced. But always it is the inference and not the presumption that must be weighed against the rebutting evidence. 5 The term “burden of proof” encompasses two distinct concepts: (1) the burden “of producing evidence, satisfactory to the judge, of a particular fact in issue”; and (2) “the burden of persuading the trier of fact that the alleged fact is true.” 2 McCormick, Evidence (7th ed), § 336, p 644. The latter burden, which can be referred to as “the risk of nonpersuasion,” has been described as follows: “It marks . . . [t]he peculiar duty of him who has the risk of any given proposition on which parties are at issue,—who will lose the case if he does not make this proposition out, when all has been said and done.”Id. at 644
n 4 (quotation marks and citation omitted; alterations in McCormick). 10 As MCL 700.3407(1) shows, the contestant bears the burden of establishing undue influence and this burden of persuasion remains throughout with the contestant. Notably, there are no exceptions in this regard. Accordingly, even where a rebuttable presumption of undue influence has arisen, EPIC still requires that the contestant establish undue influence and that the ultimate burden of persuasion remain with the contestant.6 These requirements of EPIC are consistent with the historical framework discussed earlier, and the enactment of MCL 700.3407(1) remains in this regard a codification of existing law.7 6 Although there is no specific EPIC provision that sets forth the applicable burden of proof for trust contests, the burden of establishing fraud or undue influence reposes in the party who asserts it even outside the context of wills, seeHill, 299 Mich. at 678-680
(holding that in a challenge to an inter vivos gift, the burden lies with the contestant to show undue influence and that the rebuttable presumption of undue influence does not shift that burden), and the rules of evidence further provide a framework that is consistent with how MCL 700.3407(1) treats presumptions and the ultimate burden of persuasion for wills: In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. [MRE 301.] Accordingly, under MRE 301, we believe that the same framework employed for wills is also appropriate in trust disputes. We are aware of no policy that would counsel any different standard. 7 In addition to the fact that MCL 700.3407(1) plainly evidences the codification of existing law, commenters have concurred in this proposition: Under former Michigan Law, burdens of proof were addressed by case law. This statutory statement is intended to restate existing law without change. This provision [i.e., MCL 700.3407(1)] indicates that the presumption of undue influence (which often arises in cases in which there was a confidential relationship between the decedent and another who benefits from the will) does not change the ultimate burden of persuasion; it 11 Because EPIC and our rules of evidence each require that a will or trust contestant establish undue influence and that the ultimate burden of persuasion remains with the contestant despite any presumption that may arise, we see no basis to revisit the merits of Powers. Indeed, it may largely be immaterial whether Powers was correctly decided-- although we believe that it was-- because the Legislature itself subsequently adopted the same historical framework in its enactment of EPIC, which we are bound to follow. C. PER SE APPROACH Appellants now ask us to disregard this historical framework and adopt a per se rule of undue influence under which a testamentary gift to a drafting attorney is automatically void when there has been a breach of MRPC 1.8(c). However, we believe that such an approach is inappropriate for several reasons. First, a per se approach would wholly ignore any genuine consideration of the decedent’s intentions, which as noted would violate both a foundational principle of probate law in general and one of EPIC’s expressly stated policies. See In re Kremlick Estate,417 Mich. 237
, 240; 331 NW2d 228 (1983) (“A fundamental precept which governs the judicial review of wills is that the intent of the testator is to be carried out as nearly as possible.”); In re Churchill’sEstate, 230 Mich. at 155
(“In the construction of only shifts the burden of going forward with the evidence. [Martin, Estates and Protected Individuals Code with Reporters’ Commentary (ICLE, 2001), at 177.] The opinion in support of reversal asserts that the instant citation constitutes a “novel use of legislative history.” However, we do not rely on the above to confer meaning upon EPIC; it is merely cited as consistent with what we have argued the text already shows. 12 wills the cardinal canon, the guiding polar star, is that the intent of the testator must govern . . . .”); MCL 700.1201(b) (one of the underlying purposes of EPIC is “[t]o discover and make effective a decedent’s intent in distribution of the decedent’s property”); MCL 700.8201(2)(c) (one of the underlying purposes and policies of the Michigan Trust Code (MTC), which is set forth as Article VII of EPIC, is “[t]o foster certainty in the law so that settlors of trusts will have confidence that their instructions will be carried out as expressed in the terms of the trust”). Under a per se rule of undue influence, any attempt to discern the genuine and bona fide intention of the testator is subordinated at an early juncture to consideration of the attorney’s conduct. And thus the “guiding polar star” that is the decedent’s intention comes to be diminished in favor of an assessment of the behavior of his or her legal representative.8 Second, the per se approach is contrary to both MCL 700.3407(1)(c) and MCL 700.3407(1)(d), which respectively provide that a will contestant bears the burden of establishing undue influence and that the ultimate burden of persuasion remains with the party who had the initial burden of proof, i.e., the contestant. A per se rule of undue influence would altogether nullify these requirements by relieving the contestant of the burden to establish undue influence in circumstances in which the gift has been made to 8 The opinion in support of reversal states, “Because I agree with the affirming opinion that protecting testator intent is our goal, I would adopt a per se rule of undue influence for attorney-drafters.” (Emphasis added). Respectfully, we simply do not understand what this means. A per se rule effectively and completely forecloses any opportunity for a fact-finder to discover the testator’s genuine intentions. 13 an attorney. For this same reason, the per se approach in the context of a trust challenge would improperly shift the burden of persuasion, contrary to MRE 301. The opinion in support of reversal asserts that a per se rule of undue influence would not abrogate the contestant’s burden to show undue influence because “[t]he contestant would have to show that the attorney violated MRPC 1.8(c), which requires showing (1) the attorney drafted the provision leaving himself a gift, (2) the gift was ‘substantial,’ and (3) the attorney and client were not related.” We disagree. Such a showing does not establish undue influence in any meaningful sense; rather, it merely shows that there has been a breach of MRPC 1.8(c). As noted earlier, the precise nature of the “undue influence” necessary to invalidate a will is “something which destroys the free agency of the testator at the time when the instrument is made, and which, in effect, substitutes the will of another for that of the testator.” In re Williams’Estate, 185 Mich. at 120
(quotation marks and citation omitted). See also In re Sprenger’sEstate, 337 Mich. at 521-522
(“ ‘Undue influence’ exercised upon one who executes a will may become the basis for finding the will invalid if that influence took from the testator his right to freely exercise his discretion in disposing of his property.”) Whether there has been a breach of MRPC 1.8(c) does not address whether the decedent’s free agency has been destroyed; it addresses only and obviously whether there has been a breach of MRPC 1.8(c). Third, the issue whether a per se rule of undue influence is appropriate simply boils down, in our judgment, to enacting substantive public policy, which is the responsibility of the Legislature, not this Court. The opinion in support of reversal maintains that the instant opinion “leaves clients vulnerable, rewards unscrupulous 14 attorneys, [and] encourages costly litigation”; however, we believe that the instant opinion best accords both with the law and with longstanding practice under that law, in particular, with its dominant focus on ascertaining the genuine intentions of the testator.9 In place of that focus, the opinion in support of reversal would introduce an irrebuttable legal presumption under which such intentions would simply be of no consequence in cases in which the presumption applied. Whether the current probate framework is sufficient to protect a decedent requires difficult policy determinations that involve balancing the decedent’s intentions with policies sanctioning unethical attorney conduct. And as this Court has explained: As a general rule, making social policy is a job for the Legislature, not the courts. This is especially true when the determination or resolution 9 The opinion in support of reversal responds that the instant opinion “seems to presume that [the decedent’s intent] is easily knowable. But that’s exactly the problem. It’s not.” What we have said specifically, and what we now add in response, is as follows: (a) the decedent presumably knew his own intent and had every reason to assume that that intent would matter in probate; it does not to the other opinion; (b) of course, it is true that neither this Court, nor likely anyone else, knows the decedent’s intent with the clarity and certainty with which the decedent himself knew that intent; (c) nonetheless, our legal system does presume that such intent is “knowable”; it is presumably made “knowable” by what is characterized as “evidence,” in particular, evidence concerning the language of the will and evidence of relevant surrounding circumstances; (d) if, as the other opinion asserts, the “exact” problem is that the decedent’s intent is not “knowable,” then it is difficult to understand what fundamental premises inform the probate process in this case; (e) ascertaining the decedent’s intent here should proceed as it does in all other cases in which there are questions concerning the decedent’s intent and by the same standards; there are often complications when it becomes necessary to look beyond the four corners of a will to discern intent, but courts nonetheless undertake in these circumstances, to the best of their ability, to discern intent; and (f) however difficult or imperfect the probate process may sometimes be-- no one has suggested that it involves an “easy” determination in this case-- the instant opinion has as its standard of inquiry the discernment of Robert Mardigian’s intent and the other opinion does not. 15 requires placing a premium on one societal interest at the expense of another: The responsibility for drawing lines in a society as complex as ours—of identifying priorities, weighing the relevant considerations and choosing between competing alternatives—is the Legislature’s, not the judiciary’s. [Terrien v Zwit,467 Mich. 56
, 67; 648 NW2d 602 (2002) (quotation marks and citation omitted).] If the current policy framework is insufficient to protect a decedent when MRPC 1.8(c) has been breached, and any further inquiry into the decedent’s intentions should be compromised or foreclosed, it is the Legislature that ought to make this determination and provide for an appropriate limiting rule. See, e.g., Agee v Brown, 73 So 3d 882, 886 (Fla App, 2011) (“The best way to protect the public from unethical attorneys in the drafting of wills . . . is entirely within the province of the Florida Legislature.”); Sandford v Metcalfe, 110 Conn App 162, 169-170; 954 A2d 188 (2008) (“[I]t is ill-advised, as a matter of public policy, for an attorney to draft a will in which she is to receive a bequest”; “[t]here is, however, no statute barring an attorney who drafted a testamentary instrument from inheriting by the instrument she drafted”; and “[i]f the law is to be changed to make provision for the situation at hand, it is for the legislature to make the change, not the court.”). Fourth, in specific circumstances in which the Legislature has deemed a disposition inappropriate without regard to the decedent’s intent, it has invariably provided for an explicit rule that revokes the ordinary disposition. For example, MCL 700.2803(2)(a)(i) provides, “The felonious and intentional killing or the conviction of the felon for the abuse, neglect, or exploitation of the decedent . . . [r]evokes . . . [a] [d]isposition or appointment of property made by the decedent to the killer or felon in a governing instrument.” See also MCL 700.2807(1)(a)(i) (“Except as provided by the 16 express terms of a governing instrument, court order, or contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage . . . [r]evokes . . . [a] disposition or appointment of property made by a divorced individual to his or her former spouse in a governing instrument . . . .”). EPIC provides no such rule for circumstances in which an attorney has drafted a will or trust in his or her own favor, and it would be improper for this Court to adopt such a substantive rule on its own initiative. Paselli v Utley,286 Mich. 638
, 643;282 N.W. 849
(1938) (“This court cannot write into the statutes provisions that the legislature has not seen fit to enact.”). For these reasons, we conclude that a per se rule of undue influence is untenable and incompatible with the longstanding policies of this state, and it would be inappropriate for this Court sua sponte to adopt such a rule. D. MRPC 1.8 Despite the clear statutory requirements and fundamental concepts of probate law in Michigan, appellants contend that the later adoption of MRPC 1.8(c) favors the implementation of the per se rule. Once again, MRPC 1.8(c) states, “A lawyer shall not prepare an instrument giving the lawyer or a 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 related to the donee.” There are several reasons why the adoption of this rule does not warrant a change in current law or the overruling of our longstanding precedents in regard to the present controversy. 17 First, MRPC 1.8(c) became effective in 1988, which antedated Powers but predated the Legislature’s decision to codify the requirements in EPIC that a contestant establish undue influence and that the burden of persuasion remain always with the contestant. That is, our Legislature chose to codify the requirements in EPIC despite the fact that MRPC 1.8(c) already was in place and provided that “[a] lawyer shall not prepare an instrument giving the lawyer . . . any substantial gift from a client . . . .” Therefore, even if it could be explained how the MRPC could alter substantive law-- which it cannot for the reasons that follow-- the earlier adoption of MRPC 1.8(c) would have no effect on EPIC’s later-adopted requirements. Second, MRPC 1.8(c) does not create a basis for voiding a will or trust. Rather, MRPC 1.8(c) merely prohibits a lawyer from preparing “an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client . . . .” The rule is silent concerning what effect, if any, a breach of the rule has upon the will or trust. This silence is filled by the nonsilence of MRPC 1.0(b), which relevantly provides: Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. The rules do not, however, give rise to a cause of action for enforcement of a rule or for damages caused by failure to comply with an obligation or prohibition imposed by a rule. In a civil or criminal action, the admissibility of the Rules of Professional Conduct is governed by the Michigan Rules of Evidence and other provisions of law. [Emphasis added.] In addition to the text itself of MRPC 1.0(b), this provision includes a comment setting forth the fundamental scope of the MRPC, and this comment further asserts that a 18 breach of the MRPC merely constitutes a basis for “invoking the disciplinary process.” The comment states: [A] failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. . . . As also indicated earlier in this comment, a violation of a rule does not give rise to a cause of action, nor does it create any presumption that a legal duty has been breached. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purposes of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis . . . for sanctioning a lawyer under the administration of a disciplinary authority does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extradisciplinary consequences of violating such a duty. [Emphasis added; comma omitted.] Thus, as limned in the text of MRPC 1.0 and further explained in its accompanying comment, the remedy for a breach of MRPC 1.8(c) is the “disciplinary process.” Breaches of the MRPC just do not give rise to causes of action, and private parties cannot seek to enforce a disciplinary rule. Because MRPC 1.8(c) specifically is silent as to the effect of its breach, and because a breach of the MRPC generally only supplies a basis for invoking the attorney disciplinary process, MRPC 1.8(c) does not bear on the validity of Powers or on the resolution of this case. Third, our caselaw also supports this conclusion by holding that standards of professional conduct do not create or modify substantive law. In People v Green,405 Mich. 273
, 282; 274 NW2d 448 (1979) (opinion by COLEMAN, C.J.), we considered 19 whether a breach of the Code of Professional Responsibility could compel a particular ruling on substantive law.10 The prosecutor in Green had breached disciplinary rule (DR) 7-104(A)(1), which provided that “ ‘a lawyer shall not . . . [c]ommunicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party . . . .’ ”Id. at 282-283,
quoting DR 7-104(A)(1). The prosecutor interviewed the defendant alone after he had waived his Miranda11 rights and stated that he wished to speak with the prosecutor without his lawyer present.Id. at 287.
The defendant then offered statements that were later used as incriminating evidence at his trial.Id. at 287-288.
Defense counsel moved to suppress these statements in part on the ground that the prosecutor had breached DR 7-104(A)(1), but the trial court denied the motion.Id. On appeal,
a majority of this Court held that, although the prosecutor had breached a rule of professional conduct stating that he “shall not” engage in such conduct, his breach did not afford a basis for suppression of the evidence obtained.12Id. 10 The
Code of Professional Responsibility preceded the adoption of the MRPC. 11 Miranda v Arizona,384 U.S. 436
;86 S. Ct. 1602
;16 L. Ed. 2d 694
(1966). 12 Chief Justice COLEMAN authored the lead opinion with only Justice RYAN joining the opinion in full; however, a majority agreed with its reasoning that a breach of the code did not bear on the admissibility of evidence. The Chief Justice ultimately concluded that the exclusionary rule did not apply and rejected the notion that a breach of the code affected substantive law. Justice WILLIAMS, joined by Justice FITZGERALD, wrote separately, agreeing with the lead “opinion that the prophylactic exclusionary rule need not, and should not, be extended to cover this case.”Id. at 296
(WILLIAMS, J., concurring in part and dissenting in part). They further agreed that a breach of the code did not compel the exclusion of the evidence. Justice WILLIAMS and Justice FITZGERALD noted that courts could refer attorneys to the bar for disciplinary action to deter wrongful conduct and thus dissented in part because they would have “order[ed] the Clerk to report 20 at 293-297. Instead, the lead opinion summarized the difference between the Code of Professional Responsibility and substantive law: [Defendant’s] argument rests upon a basic misconception of the Code of Professional Responsibility. The provisions of the code are not constitutional or statutory rights guaranteed to individual persons. They are instead self-imposed internal regulations prescribing the standards of conduct for members of the bar. Although it is true that the principal purpose of many provisions is the protection of the public, the remedy for a violation has traditionally been internal bar disciplinary action against the offending attorney. The sanctions available are by no means trivial. The attorney faces permanent disbarment. In these respects the provisions of the code are no different from the provisions found in the codes of conduct for other professions, such as medicine or architecture. They are all self- governing, in-house regulations. The admissibility of evidence in a court of law, on the other hand, is normally determined by reference to relevant constitutional and statutory provisions, applicable court rules and pertinent common-law doctrines. Codes of professional conduct play no part in such decisions. [Id. at 293- 294.] Accordingly, under Green, a breach of a standard of professional conduct “standing alone should be dealt with by bar disciplinary action rather than” by allowing the breach to affect the substantive legal decisions of a case.Id. at 294.
For these reasons, a breach of the MRPC merely constitutes grounds for invoking the attorney disciplinary process. The rules of professional conduct promulgated by this Court should neither overrule nor give rise to substantive law. Therefore, the adoption of MRPC 1.8(c), which occurred before the Legislature enacted the current probate the assistant prosecuting attorney’s action in this matter to the grievance authorities for appropriate action.”Id. at 297.
As a result, a majority of the Court agreed that, although the prosecutor had breached a standard of professional conduct that prohibited him from engaging in certain conduct, the breach did not dictate the substantive law. 21 framework of this state under EPIC, has no effect on either governing law in this case or on the proper resolution of this matter. See Green,405 Mich. 273
. See also, e.g., In re Bloch, 425 Pa Super 300, 310; 625 A2d 57 (1993) (“To the extent that the [attorney’s] conduct is challenged as unethical behavior violative of the Rules of Professional Conduct, Rule 1.8(c), our Supreme Court has held that enforcement of the Rules of Professional Conduct does not extend itself to allow courts to alter substantive law or to punish an attorney’s misconduct.”). IV. REMAINING ISSUES Independent of the undue-influence analysis, appellants argue that the will and the trust here should be held automatically void because their “purposes” ran contrary to “public policy.” MCL 700.7404 provides that “[a] trust may be created only to the extent its purposes are lawful, not contrary to public policy, and possible to achieve.” Furthermore, MCL 700.7410(1) provides that “a trust terminates to the extent . . . the purposes of the trust . . . are found by a court to be unlawful or contrary to public policy.” EPIC does not contain any similar provision for wills. However, even if EPIC contained such a provision, appellants’ overall argument fails because (a) it ignores the distinction between the purpose of a will or trust and the manner in which these are formed and (b) automatically invalidating a will or trust for a breach of MRPC 1.8(c) continues to give insufficient regard to the critical countervailing policy consideration: discerning and giving faithful effect to the decedent’s intentions. Here, the “purposes” of the will and the trust were to bestow a gift to a friend, which in no way is at odds with public policy. Appellants fail to cite any genuine public policy that runs contrary to the purposes of this 22 will and this trust, but instead merely take issue with the manner in which these instruments were formed, and thus their public policy arguments are flawed.13 Additionally, appellants argue that MRPC 1.8(c) sets forth an “indicator” of public policy-- seeTerrien, 467 Mich. at 67
n 11 (“We note that, besides constitutions, statutes, and the common law, . . . rules of professional conduct may also constitute definitive indicators of public policy.”)-- and therefore that a breach of MRPC 1.8(c) renders a will and trust void on public policy grounds. At the same time, appellants fail even to 13 Although the opinion in support of reversal asserts that “there is no need to resort to public policy because our Court has long had the power to establish the law of fraud,” it analogizes the instant case to those in which courts have found unethical fee-splitting contracts between attorneys to be unenforceable on the basis of “public policy.” Such an analogy fails to fully appreciate the distinction between contracts and wills and trusts. As the Court of Appeals usefully explained: In the case of a contract deemed void as against public policy because it violates the MRPC, it is principally the drafting lawyer who suffers the consequence of the invalid contract. However, when a trust or will is deemed void as against public policy because the drafting attorney violated the MRPC, the invalidation of the bequest potentially fails to honor the actual and sincere desires of the grantor. [In re MardigianEstate, 312 Mich. App. at 564
.] In addition, as we have noted earlier, the problematic nature of the instant will and trust arises from the manner in which these two instruments were formed, not from their purpose. Moreover, with respect to fraud, the opinion in support of reversal does not acknowledge the longstanding principle that “[f]raud cannot be presumed, but must be proved.” Brown v Dean,52 Mich. 267
, 271;17 N.W. 837
(1883). See also Goldberg v Goldberg,295 Mich. 380
, 384;295 N.W. 194
(1940) (“The burden of showing fraud is upon the person alleging it. Fraud is never presumed, nor is it to be lightly inferred.”) (citations omitted). A per se rule of undue influence, however, does exactly that: it presumes the existence of fraud or, more specifically, the existence of undue influence while discharging the contestant’s affirmative responsibility to establish that the decedent’s free agency has been abrogated. 23 mention the strong countervailing public policy considerations regarding the decedent’s intentions. Our common law and our statutes may be considered the truest indicators of public policy, seeid. at 66-68,
and that common law and those provisions of EPIC strongly favor the discernment and effectuation of the decedent’s intentions. MCL 700.1201(b) (providing that EPIC shall be applied “[t]o discover and make effective a decedent’s intent in distribution of the decedent’s property”); MCL 700.8201(2)(c) (providing that the MTC shall be applied “[t]o foster certainty in the law so that settlors of trusts will have confidence that their instructions will be carried out as expressed in the terms of the trust”);Kremlick, 417 Mich. at 240
(“A fundamental precept which governs the judicial review of wills is that the intent of the testator is to be carried out as nearly as possible.”). In summary, appellants’ public policy arguments are without merit because the “purposes” of the instruments in dispute are not contrary to public policy and because their per se approach fails entirely to consider even the most dominant countervailing public policy considerations set forth in EPIC, namely the decedent’s intentions. V. CONCLUSION Among the underlying purposes and policies of EPIC, reflected deeply within our state’s caselaw, is the discernment and effectuation of the decedent’s intentions in the distribution of his or her property. Indeed, the “guiding polar star” in probate law is that the intentions of the decedent control in this regard. The per se rule of undue influence advocated by appellants would foreclose at some juncture any further consideration of these intentions in favor of an assessment of the behavior of the decedent’s attorney. 24 Appellants’ per se rule would run contrary to the foundational principles of probate law, longstanding precedents of this state, and the express provisions of EPIC that require the contestant to bear the burden of establishing undue influence. And the adoption of MRPC 1.8(c), which occurred well before our Legislature enacted EPIC, has no effect on our conclusion in this case because a breach of the MRPC is exclusively a basis for invoking the attorney disciplinary process and does not override the substantive law of EPIC. Therefore, we respectfully reject the approach advocated by appellants, endorse the rebuttable presumption of undue influence articulated in Powers, and would affirm the judgment of the Court of Appeals for the reasons set forth in this opinion. Stephen J. Markman Brian K. Zahra Elizabeth T. Clement 25 STATE OF MICHIGAN SUPREME COURT In re MARDIGIAN ESTATE. MARK S. PAPAZIAN, Executor for the Estate of ROBERT DOUGLAS MARDIGIAN, Appellee, v No. 152655 MELISSA GOLDBERG, SUSAN V. LUCKEN, NANCY VARBEDIAN, EDWARD MARDIGIAN, GRANT MARDIGIAN, and MATTHEW MARDIGIAN, Appellants, and JP MORGAN CHASE BANK, NA, Appellee. MCCORMACK, J. (for reversal). The ethical code that governs every member of the State Bar of Michigan categorically forbids a lawyer from drafting a will for a client that leaves the lawyer a substantial gift. Yet this Court’s outdated precedent enables a lawyer to do so anyway. To be sure, that precedent requires the lawyer to show no undue influence was applied to his client. But that showing is required after the client has passed away, giving the lawyer a consequential evidentiary advantage. The affirming opinion’s decision to affirm this precedent leaves clients vulnerable, rewards unscrupulous attorneys, encourages costly litigation, and moreover does not account for the important shifts of the past half-century in our ethics rules, probate law, and evidentiary presumptions. Not all undue influence is equally pernicious: A lawyer who drafts a testamentary instrument that leaves the lawyer a substantial gift in flagrant violation of the professional code of ethics is unique among conflicted beneficiaries in will contests, as she is both an author and beneficiary of the will. To respond, an effective tool is needed. I would overturn In re Powers Estate,375 Mich. 150
; 134 NW2d 148 (1965), to the extent that it held that courts should apply a mere presumption of undue influence to a will contest where an attorney has drafted a testamentary document that names himself as a beneficiary. That particular equitable remedy may have been sufficient before significant changes to our ethics code, the law of probate, and our approach to presumptions. But it is no longer sufficient to protect the public. I would therefore replace it with a per se rule of undue influence that voids substantial testamentary gifts to attorney-drafters. Those who draft wills should not benefit from them. We owe the public better. I would reverse the Court of Appeals. I. ANALYSIS A. GOVERNING LAW The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., the statutory framework that governs testamentary transfers, was enacted so that “a 2 decedent’s intent in distribution of the decedent’s property” could be “discover[ed] and [made] effective[.]” MCL 700.1201(b). Thus, the “fundamental precept which governs the judicial review of wills is that the intent of the testator is to be carried out as nearly as possible.” In re Kremlick Estate,417 Mich. 237
, 240; 331 NW2d 228 (1983). The same applies to trust documents. In re Maloney Trust,423 Mich. 632
, 639; 377 NW2d 791 (1985). To determine the decedent’s intent, we read a testamentary document as a whole and, when it contains no ambiguity, enforce it as written. Bill & Dena Brown Trust v Garcia,312 Mich. App. 684
, 693-694; 880 NW2d 269 (2015). I agree with the affirming opinion that a court must do all in its power to carry out the testator’s intent. That’s the whole point: when someone has potentially exerted undue influence on a decedent, courts can no longer be sure that the testamentary instrument, the end product of that alleged influence, accurately reflects the testator’s intent. In re Sprenger’s Estate,337 Mich. 514
, 521-522; 60 NW2d 436 (1953); Detroit Bank & Trust Co v Grout,95 Mich. App. 253
, 274-276; 289 NW2d 898 (1980). Testamentary gifts that result from undue influence are void.1 To establish undue influence, contestants of a testamentary document must show more than mere opportunity: they must show that the testator “ ‘act[ed] under such coercion, compulsion, or constraint that his own free 1 EPIC provides for the invalidation of trusts produced by undue influence, see MCL 700.7406 (“A trust is void to the extent its creation was induced by fraud, duress, or undue influence.”), and the same rule has been applied to wills, see In re Anderson Estate,353 Mich. 169
, 172; 91 NW2d 356 (1958) (“Undue influence exercised upon one who makes a will may become the basis for finding the will invalid, if by reason of that influence the right of the testator to freely exercise his discretion in disposing of his property has been taken away from him.”). 3 agency is destroyed. The will or the provisions assailed does not truly proceed from him. He becomes the tutored instrument of a dominating mind . . . .’ ” In re Balk’s Estate,298 Mich. 303
, 309;298 N.W. 779
(1941), quoting In re Williams’ Estate,185 Mich. 97
, 118;151 N.W. 731
(1915) (cleaned up). Generally, the burden of proof rests with the contestant alleging undue influence. MCL 700.3407(1)(c); Kar v Hogan,399 Mich. 529
, 539; 251 NW2d 77 (1976); In re Kramer’s Estate,324 Mich. 626
, 634-635; 37 NW2d 564 (1949). But this Court has long applied a different framework when an attorney drafts a testamentary instrument for her own benefit. In those cases, we recognized as early as 1897 that the attorney’s palpable self-interest “arous[es] suspicion, and raises a presumption more or less strong that undue influence has been exerted . . . .” Donovan v Bromley,113 Mich. 53
, 54;71 N.W. 523
(1897). Ten years later, we reiterated that it was “generally recognized by the profession as contrary to the spirit of its code of ethics for a lawyer to draft a will making dispositions of property in his favor, and this court has held that such dispositions are properly looked upon with suspicion.” Abrey v Duffield,149 Mich. 248
, 259;112 N.W. 936
(1907). The presumption of undue influence, as applied to attorney-drafter- beneficiaries, is the same presumption that applies whenever a testator favors a fiduciary.Powers, 375 Mich. at 180-181
(opinion by SOURIS, J.). The presumption arises upon the introduction of evidence which would establish (1) the existence of a confidential or fiduciary relationship between the grantor and a fiduciary, (2) the fiduciary or an interest which he represents benefits from a transaction, and (3) the fiduciary had an opportunity to influence the grantor’s decision in that transaction.[Kar, 399 Mich. at 537
.] 4 That is, the presumption is no different for an attorney-drafter-beneficiary or another fiduciary-beneficiary, despite the attorney’s unique role in preparing the questionable instrument and plain ethical violation in drafting it. We last examined this presumption against an attorney-drafter in In re Powers, more than half a century ago. Maybe it made sense then. For the reasons that follow, I believe it is time to reconsider it. B. THE INSUFFICIENCY OF THE PRESUMPTION In my view, the affirming opinion’s decision today to affirm the rebuttable presumption for attorney-drafters fails the testator while protecting the lawyer. To begin, the rebuttable presumption is easily surmountable. The presumption does not change the ultimate burden of proof, which rests with the party alleging undue influence.Id. at 538.2
Its function “is solely to place the burden of producing evidence on the opposing party,” Widmayer v Leonard,422 Mich. 280
, 289; 373 NW2d 538 (1985), but the presumption “has no weight as evidence . . . and cannot be weighed against evidence,” In re Jennings’ Estate,335 Mich. 241
, 244; 55 NW2d 812 (1952); see also In re Cotcher’s Estate,274 Mich. 154
, 159;264 N.W. 325
(1936) (“ ‘[B]ut, if [the presumption is] challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, and it then becomes a question of weighing the actual 2 See also MRE 301 (“In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party whom it was originally cast.”). 5 evidence introduced, without giving any evidential force to the presumption itself.’ ”), quoting Gillett v Mich United Traction Co,205 Mich. 410
, 414;171 N.W. 536
(1919). In other words, it allows the benefitting party the opportunity to satisfy the burden of persuasion to avoid a directed verdict.Widmayer, 422 Mich. at 289
. But the opposing party can rebut the presumption with “sufficient” evidence.Kar, 399 Mich. at 542
; In re Peterson Estate,193 Mich. App. 257
, 262; 483 NW2d 624 (1991).3 Overcoming the presumption is hardly a challenge given this modern construction. And applying the presumption against attorney-drafters (as contrasted with other beneficiary-drafters) ignores the unique status of the attorney. The Powers court missed this, stating: Whether proponent [i.e., the attorney] used questionable professional judgment in drawing the instrument involved need not be retried; it is irrelevant. Proponent’s status as a member of the bar of Michigan adds not one centimeter, nor subtracts one from his position as a party litigant, and this question should take no time in trial.[Powers, 375 Mich. at 176
.] That’s not right. The prospect of discerning testator intent when the attorney-drafter is compromised is far harder than for other compromised drafters. Evidence of testator intent is most commonly located in the testamentary document itself and the mind of the attorney who drafted it. While the first is ordinarily the best evidence of intent, Karam v Law Offices of Ralph J Kliber,253 Mich. App. 410
, 424; 655 NW2d 614 (2002), where there is a possibility that the document was the product of undue influence, it is of little 3 I note, however, that there is an open question on what a party must show to rebut the presumption. See, e.g., In re Mortimore Estate,491 Mich. 925
(2012) (YOUNG, C.J., dissenting). 6 use. In such a case an attorney-drafter’s testimony would be the next surest evidence of intent, given that she was intimately involved with the testator in producing the instrument; indeed, when an attorney-drafter is not the beneficiary of a contested instrument, her testimony can be critical to a court trying to assess testator intent where undue influence on the part of a fiduciary is alleged. See, e.g., Jennings’Estate, 335 Mich. at 244
(“The presumption was held to have been rebutted and overcome by a showing that the will had been executed after independent legal counsel in [various cases.]”); In re Grow’s Estate,299 Mich. 133
, 140;299 N.W. 836
(1941) (noting only that while a presumption might have arisen, the testator “had independent advice of Mr. Phillips, an attorney of Pontiac, in the preparation of his will”).4 But much like the corrupt instrument, an attorney-beneficiary’s ethical violation and conflicted position make him not a reliable source. The affirming opinion seems to presume that that information is easily knowable. But that’s exactly the problem. It’s not. If we could readily determine Mr. Mardigian’s intent, there would be no need for this appeal. But it is precisely because our precedent allows attorneys to draft wills for their own benefit that difficult situations like this arise 4 A treatise section on probate drafting recommends that attorneys “interview the prospective testator alone, or at least not in the presence of anyone who could have a possible interest in disposition of the property, as to his or her desires.” 12 Mich Pleading & Practice (2d ed), § 99:48, p 466; see also In re Hayes’ Estate,255 Mich. 338
, 345;238 N.W. 245
(1931) (noting, without a hint of concern, that the “will was prepared in the office of a reputable attorney after a private consultation with testator”). When the lawyer herself is the beneficiary, it is impossible for her to interview her client outside the presence of an interested party. And the threat of undue influence is heightened if the attorney-beneficiary consults the client alone. That following best practices would lead to worse outcomes signals that these instruments are inherently problematic. 7 and courts must resolve matters without the most reliable evidence of testator intent. I don’t know how the affirming opinion can be so sure what Mr. Mardigian’s intent was. That’s the problem unique to attorney-drafter beneficiaries.5 C. PER SE UNDUE INFLUENCE RULE Because I agree with the affirming opinion that protecting testator intent is our goal, I would adopt a per se rule of undue influence for attorney-drafters.6 Such a rule ensures that the drafting attorney will be a reliable witness in the search for the testator’s true intent. It would make it easier to determine the testator’s intent; when a client wants to leave his lawyer a substantial gift the lawyer simply will have an independent lawyer counsel the client and draft the instrument. While a rebuttable presumption might have been a sufficient equitable remedy in a different era, changes in the law and our ethics code make it not much protection at all today. 5 I emphatically reject the affirming opinion’s assertion that the testator’s intent does not matter to me. It is possible that application of a per se rule might defeat the testator’s intent in this case; but it is also possible that the affirming opinion’s approach will have that result. But the per se rule I advocate below would end this practice, making it much easier to determine the testator’s intent in future cases. 6 The affirming opinion is concerned that a per se rule would obviate the contestant’s burden to show undue influence. Not so. The contestant would have to show that the attorney violated MRPC 1.8(c), which requires showing (1) the attorney drafted the provision leaving himself a gift, (2) the gift was “substantial,” and (3) the attorney and client were not related. Once these facts are established the per se rule would take over. This basic framework is no different than invalidating a will after the contestant proves it was signed upon the threat of violence. But it is true that the burden for a litigant contesting an instrument that benefits a drafting attorney would not be the same as with other fiduciary beneficiaries. As it should be. 8 Courts have equitable powers over the settlement of an estate. MCL 700.1302 and MCL 700.1303. And they have equitable powers to address cases of fraud. Devillers v Auto Club Ins Ass’n,473 Mich. 562
, 590; 702 NW2d 539 (2005). “Undue influence is a species of fraud,” and the rules of fraud therefore apply to questions of undue influence. Adams v Adams (On Reconsideration),276 Mich. App. 704
, 710 n 1; 742 NW2d 399 (2007). Courts may apply equitable powers to preserve the integrity of the judiciary as well. Stachnik v Winkel,394 Mich. 375
, 382; 230 NW2d 529 (1975). The Powers presumption was an appropriate equitable tool for its time, but it now should receive an update: a testamentary instrument produced by an attorney-beneficiary should be seen as one that has resulted from undue influence. Full stop. Generally, to prove undue influence, “ ‘[m]otive, opportunity, or even ability to control’ ” is insufficient. In re Karmey Estate,468 Mich. 68
, 75; 658 NW2d 796 (2003), quotingKar, 399 Mich. at 537
. Instead, “affirmative evidence” must be shown.Id. I would
hold that a lawyer who drafts testamentary instruments in violation of MRPC 1.8(c) has provided that “affirmative evidence.” I reach this conclusion after careful consideration of the substantial changes in the law and in our ethics rules since Powers, the need to harmonize probate law and our ethics code, and the special circumstances that set attorneys apart from other fiduciaries.7 I don’t share the affirming opinion’s concerns about a per se rule. First, the idea that a per se rule would somehow usurp the role of the Legislature rests on a flawed 7 Because I would overrule Powers directly and rely on our equitable authority to establish a new rule, I decline to address respondents’ argument that wills and trusts can be held void as against public policy under MRPC 1.8(c). 9 premise; the suggestion that EPIC has somehow codified the Powers presumption is simply not correct. For one thing, the Legislature provided “undue influence” as a basis to invalidate a will, MCL 700.3407(1)(c), but it has not defined the term. Nowhere does it mandate a “rebuttable presumption” as the standard for assessing undue influence, whether for attorneys or anyone else. Rather, this Court invented that doctrine.Donovan, 113 Mich. at 54
.8 1. CHANGES TO LAW SINCE POWERS Powers was decided in a different legal world. The rules of professional conduct, probate law, and our approach to rebuttable presumptions have all changed significantly since 1965. Considered together, those changes require an updated approach to our old rule if we are serious about protecting the public in this context. a. ETHICS RULES AND THEIR ENFORCEMENT Bear with me; this part is a bit of a slog. Over the last century or so, a sea change has occurred in how the legal profession views and operationalizes its ethics rules. When 8 And the affirming opinion’s reasoning on this point cites a particularly questionable use of legislative history. It cites the EPIC Reporter’s Commentary to support the proposition that MCL 700.3407 merely restated the law of burdens of proof, presumptions and all, so that any change to the Powers presumption risks contravening the statute. See Martin, Estates and Protected Individuals Code with Reporters’ Commentary (ICLE, 2001), p 77. But the Reporter’s Commentary—an item the Legislature never acted upon—does “not involve an act of the Legislature” and thus has “considerably diminished” use for courts. In re Certified Question from the United States Court of Appeals for the Sixth Circuit,468 Mich. 109
, 115 n 5; 659 NW2d 597 (2003). Thus, the notion that EPIC has incorporated, or otherwise precludes us from revisiting, the Powers presumption is not borne out by the statutory text but instead relies in part on the affirming opinion’s novel use of legislative history. I am not convinced. 10 this Court first introduced the presumption of undue influence in the context of an attorney-beneficiary of an estate at the end of the nineteenth century, there was no formal code of ethics governing lawyers; only personal morality and specific statutes governed lawyer conduct. See Niehoff, In the Shadow of the Shrine: Regulation and Aspiration in the ABA Model Rules of Professional Conduct, 54 Wayne L Rev 3, 5-6 (2008); Wolfram, Toward a History of the Legalization of American Legal Ethics-II The Modern Era, 15 Geo J Legal Ethics 205, 206 (2002) (“The early history of American legal ethics gave no indication that lawyers would one day become a highly regulated profession. For the most part, regulation was highly traditional, episodic, and reactive, and was addressed primarily to pathological extremes of lawyer behavior.”). If attorney conduct was regulated, it was case by case in litigation. 1 Hazard et al, The Law of Lawyering (4th ed), § 1.08, p 1-29. And “[p]rior to the late 1800’s there were no conflict of interest rules as such[.]” Flamm, Conflicts of Interest in the Practice of Law: Causes and Cures (2015), p 30. Alabama produced the nation’s first ethical code in 1887, and the ABA built upon that code when it issued the 1908 Canons of Ethics. Hazard, Law of Lawyering at §§ 1.09 and 1.10, pp 1-31, 1-32.9 Even where adopted, however, the Canons did not have the force of law, and ethics opinions interpreting the Canons did not even bind the parties to the case.Id. at §