Unfortunately, there are times that an experienced litigation team is needed to address issues of interpersonal or financial conflict in the planning or administration processes. These can include issues of mental competency, undue influence or questionable changes to estate planning documents. This can also include the failure of the fiduciary to properly perform their role.
When probate disputes arise or a Will contest is filed, The Probate Pro’s team of experienced litigation attorneys will represent trustees, personal representatives and beneficiaries in probate and trust administration matters as well as contested and uncontested guardianship and conservatorship matters. If you are faced with litigation involving probate, whether as a personal representative, heir, devisee, or as a creditor, The Probate Pro can aggressively represent your interest.
The following is a general Timeline in a probate and trust litigation file. Please call (248) 399-3300 if you have questions.
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Who has priority to serve as Personal Representative?
Michigan’s probate code sets forth the priority of persons to serve as personal representative:
(a) The person with priority as determined by a probated will including a person nominated by a power conferred in a will.
(b) The decedent’s surviving spouse if the spouse is a devisee of the decedent.
(c) Other devisees of the decedent.
(d) The decedent’s surviving spouse.
(e) Other heirs of the decedent.
What are the requirements for a valid Will?
The basic requirements for a valid Will are that it be in writing, signed by the Testator, and signed by two witnesses.
Who is the Testator?
The Testator is the person making the Will. The Testator must be of sound mind and at least 18 years old. Citizenship or residency is not required.
Who can witness the Will?
A Will should be witnessed by two competent people who do not receive property under the Will.
What is the mental capacity required to make a Will?
To have a valid Will, the person making the Will must have mental capacity at the time of signing the Will. This means he or she must:
• Know the nature and extent of the property owned;
• Know the names of the heirs;
• Know who is getting what under the Will; and
• Know that they are making a Will.
The burden is upon the person questioning the competency of the deceased to establish that incompetency existed at the time the will was drawn.
Testamentary capacity is judged as of the time of the execution of the instrument, particularly when there is evidence of the testator’s competence on the day the documents were signed.
What are the grounds for a will contest?
Most of the challenges to invalidate Wills are initiated by potential heirs or beneficiaries who got little or nothing under the Will. The typical objections are:
(1) the Will was not properly drawn, signed or witnessed, according to the state’s formal requirements;
(2) the decedent lacked mental capacity at the time the Will was executed;
(3) there was fraud, force or undue influence; or
(4) the Will was a forgery.
If the Will is held invalid, the probate court may invalidate all provisions or only the challenged portion. If the entire Will is held invalid, generally the proceeds are distributed under the State’s statute for intestate estates. Needless to say, if there is even the possibility of a Will contest, an experienced probate lawyer is a must.
What is Undue Influence?
One of the defenses to the admission of a Will is the theory of undue influence. Prevailing on the theory of undue influence can invalidate the admission of the Will.
In Michigan, to prove undue influence, a person must show that the person that signed the Will (the testator) was subjected to “threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel” the testator to act against her inclination and free will. “Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exercised, are not sufficient.”
Influence alone is not sufficient. The key word is undue. As an example, Michigan law recognizes that a spouse has tremendous influence over another spouse. That alone does not necessarily rise to meet the threshhold of undue influence. ”The core legal principle that there must be proof of actual undue influence, which cannot be presumed merely from a marital relationship, evolved over time, resulting in a widely-applied, three-factor test governing a presumption of undue influence.”
The three factor test is as follows. A presumption of undue influence can be created 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. Establishment of this presumption creates a mandatory inference of undue influence, shifting burden of going forward with contrary evidence onto person contesting claim of undue influence.
How does the Court determine how to distribute Wrongful Death Proceeds?
Following the resolution of a wrongful death case, the court must determine to whom to distribute the proceeds. After the payment of attorney fees, costs, and liens on the monies, the court will distribute the monies among the available wrongful death claimants. Most of the time, the personal representative, with input from the attorney and the family is able to agree on how to distribute. Unfortunately, there are times when this is not possible and litigation ensues.