Fewer than one percent of wills are challenged in court, and many of those challenges are unsuccessful. The fact of the matter is, it is not easy to overturn a will, or even a provision in a will. That said, the law of every state, including Michigan, includes provisions for contesting a will.
Courts generally want to honor the last wishes of the person who made a will, also called the testator. Even so, there are some circumstances in which honoring a will would be unfair, and probate litigation is necessary to prevent an unjust result.
When people decide they want to challenge a will, it is often because the will doesn’t say what they think it should—specifically, that they did not receive an inheritance they thought they were promised or believed they were entitled to. Those are typically not good reasons to challenge a will. A testator’s verbal promise to make a particular bequest is almost never enforceable. And a testator may leave beneficiaries as little as he or she likes—or disinherit them altogether, with very limited exceptions.
As difficult as it is to challenge a last will and testament, here are five reasons you might want to contest a will in Michigan.
In order to make a valid will, the testator must have the legal capacity to create a will. For instance, minors under the age of 18 lack testamentary capacity. Legal adults are generally presumed to have testamentary capacity, but it can be proven that they lacked the mental capacity to form a valid will.
Challenges based on lack of testamentary capacity are probably the most common type of will contest. The lack of testamentary capacity alleged is usually due to Alzheimer’s or another form of dementia, but may be due to mental illness or being under the influence of drugs. To successfully contest a will based on lack of testamentary capacity, the challenger must demonstrate that at the time he or she made the will, the testator did not understand the consequences of doing so. To have testamentary capacity, a testator must be able to understand:
If it can be shown that the testator did not understand what they were doing at the time they made the will, the will challenge is likely to be successful. However, because the inquiry focuses on the testator’s capacity at the time the will was signed, unless a doctor made findings about the testator’s mental capacity around that time, proof may be difficult to come by.
Undue influence is probably one of the better known reasons for contesting a will, but like lack of testamentary capacity, it can be very difficult to prove. Undue influence requires much more than, say, one adult child being extra attentive to an elderly parent in hopes of getting a larger share of the inheritance than their siblings. It is, in essence, influence that destroys the free will of the testator and substitutes that of the influencer.
In cases of undue influence, the influencer is usually someone in a position of trust with regard to the testator, such as a caretaker. The testator is often weak, frail, or vulnerable. The testator may have diminished capacity, but must still have testamentary capacity in order to be unduly influenced.
The influencer may threaten or flatter the testator into making a will that favors the influencer. This sometimes happens after the influencer isolates the testator from family or friends. The influencer may also take an active role in getting the testator to make the will, such as driving them to the attorney and directing the attorney as to what should be in the will.
This is just what it sounds like. Fraud means that someone led the testator to make or change a will by deception or trickery. Creating or changing a will through forgery, including forgery of the testator’s signature, is also grounds for contesting a will.
Testators may need to update their estate plan and change their will over time to reflect changed life circumstances such as the acquisition or loss of an asset or the birth or death of a beneficiary. The execution of a new will generally invalidates previous wills. If the testator does not destroy the previous will or notify family members of the existence and location of the latest will, they may submit an invalid will to probate by accident. (It is also possible that an unscrupulous heir could deliberately submit an earlier will that favors them to the probate court.) Someone with proof of the existence of a more recent will should bring that proof to the attention of the probate court.
Michigan law requires that a valid will be signed by a testator, or that someone else signs the will in the testator’s name and at their direction. The will must also be signed by at least two witnesses who observed the testator signing the will, or witnessed the testator acknowledging that they signed the will. A will that would otherwise be valid can be challenged if it is unsigned, not properly witnessed, or has certain other technical flaws.
If you have questions about contesting a will in Michigan, or simply want to do everything possible to ensure that your own will is not eventually challenged, we invite you to contact attorney Suzy Fanning to schedule a consultation.