IN RE BENKER ESTATE, 97 Mich. App. 754

D. E. Holbrook, Jr., J. Charles Benker died intestate on December 15, 1976, at the age of 84 years. He left as sole heirs his wife of 13 years, Elizabeth Benker, and his daughter by a previous marriage, Ruth Counts. Prior to their marriage Mr. and Mrs. Benker executed an antenuptial agreement by which each waived any and all rights to inheritance from the other. Mrs. Benker now contends that the agreement was void because the extent of her former husband’s estate had not been revealed to her.

Ruth Counts appeals by leave a Wayne County Circuit Court order affirming the probate court order which invalidated the antenuptial agreement. It is plaintiffs contention that the trial court erred by not correctly allocating the burden of proof to the party seeking to invalidate the ante-nuptial contract. We agree. The presumptive validity of antenuptial agreements is authorized by statute. MCL 557.5; MSA 26.164 provides: "All contracts made between persons in contemplation of marriage, shall remain in full force after marriage takes place”.

MCL 700.291; MSA 27.5291 (Revised Probate Code) provides: "The rights of the surviving spouse to an estate and to dower, homestead allowance, election, exempt property, and family allowance or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure.

Unless it provides to the contrary, a waiver of 'all rights’ in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separate maintenance or divorce is a waiver of all rights to dower, homestead allowance, election, exempt property, and family allowance by each spouse in the property of the other and an irrevocable renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.” The above-quoted language requires a fair disclosure; however, it does not place the burden of proof on the party claiming nondisclosure.

In determining the proper allocation of the burden of proof, we must go to existing case law. There is Michigan precedent which holds that the burden of proof should be allocated to the party claiming invalidity of the agreement based on nondisclosure.

In Richard v Detroit Trust Co, 269 Mich 411, 416; 257 NW 725 (1934), it was held: "A consideration of these authorities shows that the law of this State recognizes the existence of a confidential relationship requiring good faith, fair dealings, and open disclosure, but places upon the party charging fraud and a breach of confidence the burden of proof.” The Richard Court made a distinction between fraud and nondisclosure; however, it is clear from the above-quoted language that the Court intended the burden of proof to be imposed upon the party claiming invalidity, whether under terms of "fraud” or "nondisclosure”.

The terms fraud, nondisclosure, breach of confidence and misrepresentation are often used interchangeably. Nondisclosure is a failure to reveal facts and may be considered a form of fraud where there is a duty to reveal such facts. Fraud is defined as a false representation of a matter of fact, whether by words or by conduct, by false or misleading allocations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Black’s Law Dictionary (4th ed, 1968).

Fraud includes acts, omissions and concealments involving a breach of legal or equitable duty, trust or confidence which cause injury to another or by which an undue and unconscientious advantage is taken of another. 1 Story, Equity Jurisdiction, § 267, pp 264-265. There are some facts which might tend to support the widow’s allegation of nondisclosure. However, under Richard, supra, as she is the party asserting nondisclosure, it is incumbent upon her to carry the burden of proof. Resolution of the foregoing being dispositive, it is unnecessary for us to comment on appellant’s remaining allegations of error.

Reversed and remanded.