A Will is presented to the probate court for admission. It will determine to whom and how much each person will receive. What can you do to stop it? Must you sit idly by? If you have an objection to a Will in Michigan, there is a specific process that must be followed.
Michigan law provides that “A party to a formal proceeding who opposes the probate of a will for any reason shall state in his or her pleadings the party’s objections to probate of the will.” The objection to a Will should always be placed in writing with specific allegations as to the reason the Will should not be admitted to probate, and filed with the probate court.
It is important to remember that the person presenting the Will to the probate court “has the burden of establishing prima facie proof of due execution . . . .” This means that the person presenting the Will must prove that the Will was signed in accordance with Michigan law. MCL 700.3407 specifically places the burden of proof on the party that filed the objection to a Will. The statute provides that:
(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.
(2) If a will is opposed by a petition for probate of a later will revoking the former, the court shall first determine whether the later will is entitled to probate. If a will is opposed by a petition for a declaration of intestacy, the court shall first determine whether the will is entitled to probate.
An objection to a Will can generally be categorized in the following types of challenges:
(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 Michigan’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.
The Probate Pro has a huge staff of smart lawyers and paralegals to solve difficult issues. The Probate Pro is the largest law firm in Michigan practicing exclusively in probate related services. Let our experience give you the edge.