Estate of Morris v. Morris (In re Estate of Morris)

• Decision Date: 01 May 2018
• Docket Number: No. 336304,336304
• Parties: In re Estate of MORRIS. Estate of STANLEY MORRIS, Plaintiff-Appellant, v. MARY MORRIS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

In re Estate of MORRIS.Estate of STANLEY MORRIS, Plaintiff-Appellant, v. MARY MORRIS, Defendant-Appellee.

No. 336304

STATE OF MICHIGAN COURT OF APPEALS

May 1, 2018

UNPUBLISHED

Oakland Probate Court

LC No. 2013-350325-DE

Before: BORRELLO, P.J., and SHAPIRO and TUKEL, JJ.

SHAPIRO, J. (dissenting).

I respectfully dissent and would conclude that the trial court clearly erred in its factual findings and that the sums deposited in the account by the decedent did not constitute an inter vivos gift.

The Michigan Supreme outlined the elements of an inter vivos gift in Osius v Dingell, 375 Mich 605, 611; 134 NW2d 657 (1965):

It may be stated generally that the three elements necessary to constitute a valid gift are these: (1) that the donor must possess the intent to pass gratuitously title to the donee; (2) that actual or constructive delivery be made; and (3) that the donee accept the gift. It is essential that title pass to the donee. As to delivery, it must be unconditional and may be either actual or constructive; the property may be given to donee or to someone for him. Such delivery must place the property within the dominion and control of the donee. This means that a gift inter vivos must be fully consummated during the lifetime of the donor and must invest ownership in the donee beyond the power of recall by the donor. As to acceptance, it is said that the donee is presumed to have accepted the gift where such is beneficial. [Citations omitted.]

The trial court's conclusion was not consistent with these requirements. The court appears to have concluded that Mary was more credible than her brother and that as a result, she must prevail. However, a review of the evidence demonstrates that the trial court's finding that the decedent gifted the entire account to defendant was legally incorrect, and that its factual findings, at least in part, were clearly erroneous.¹ The only element of an inter vivos gift that was satisfied in this case is that defendant accepted the gift. Although there was evidence that the decedent allowed defendant to use the funds in the account, there was no evidence that he intended to pass title to defendant. This is because the decedent and Mel remained as joint owners with defendant on the account. Therefore, the interest in the account was not solely within defendant's dominion and control. "A gift inter vivos is not only immediate, but absolute and irrevocable." In re Casey Estate, 306 Mich App 252, 263; 856 NW2d 556 (2014) (quotation marks and citation omitted). Further, delivery was not unconditional. Because the decedent remained on the account until his demise, he could have recalled the gift at any time. This also supports the position that the gift was not fully consummated during the decedent's lifetime.

The sole evidence that the account was intended to be an inter vivos gift was defendant's testimony. There was no other evidence as to statements made by the decedent or any documentary evidence. Defendant's own testimony, however, is in part inconsistent with her own assertions. Defendant testified that she "loan[ed]" money to herself when she was laid off from her employment in January 2009. She also admitted to "loaning" herself some money from the account to make her mortgage payments. The probate court's explanation as to why defendant's use of the word "loan" for the mortgage payment was simply conjecture as it was unsupported by the record. Further, defendant testified that she asked the decedent for permission before using the funds in the account. Although defendant testified that the decedent subsequently told her to stop asking for permission, the fact that she asked for permission and used the word "loan," supports an inference that she knew that the funds were not hers.

All the other evidence weighed heavily against defendant's position. First, defendant never informed her siblings, or apparently anyone else, that she had received this large gift. Second, at the time the gift was allegedly made, defendant was seeking bankruptcy protection. Bankruptcy law mandates that she list all assets and that she amend her petition should new assets be obtained prior to discharge.² However, defendant failed to amend her petition orotherwise advise the court or anyone interested in the proceeding about these newly obtained funds.³ Third, she did not disclose the money she claims to have received from the decedent as an asset when she applied for unemployment benefits. And fourth, the decedent never removed her brother, Mel, as a joint owner on the bank account. As we stated in our prior opinion, "continuing Mel's status as a joint owner was...