When disputes arise in the estate planning or administration process, having an experienced probate litigation team is critical. These conflicts may involve issues of mental capacity, undue influence, suspicious changes to estate documents, or a fiduciary’s failure to properly carry out their responsibilities. Our Michigan probate litigation attorneys are dedicated to protecting your rights and pursuing the best possible outcome.
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:
If the Will is held invalid, the probate court may invalidate either 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. This is a type of probate litigation that our Michigan attorneys frequently handle.
An individual may successfully object to the appointment of a guardian if (s)he can show that (s)he is capable of making and communicating informed decisions. A guardian will be appointed only if there is clear and convincing evidence that the individual is incapable of making and communicating informed decisions.
An individual may successfully object to the appointment of a conservator if (s)he can show that either (s)he does not have property that needs management, or that (s)he is able to manage property and business affairs effectively.
Understanding why will and trust disputes occur helps beneficiaries and family members recognize potential issues early. Here are the primary triggers of will and trust litigation.
When someone exerts excessive pressure on a testator or trustor to change their estate plan, it may constitute undue influence. This often occurs when a caregiver, family member, or trusted advisor uses their position to manipulate the person creating or modifying their estate plan. Signs of undue influence include sudden changes to estate documents, isolation from other family members, and dependent relationships.
Mental capacity is crucial when creating or modifying estate plans. A person must understand the nature and extent of their property, their natural beneficiaries, and the impact of their decisions. Disputes often arise when there’s evidence suggesting cognitive decline, dementia, or other mental health issues affected the testator’s or trustor’s judgment. A probate litigation attorney can help Michigan clients in this instance.
The basic requirements for a valid Will are:
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. A Will should be witnessed by two competent people who do not receive property under the 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:
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.
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:
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. Our Michigan lawyers can explain how you should handle this type of probate litigation.
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.
Generally, 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 threshold 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.
Generally, the creation of a Trust allows property to avoid probate and to quickly and efficiently pass to the beneficiaries you name, without the time and expense of the probate court’s involvement. When the person who executed a revocable living Trust (called the “Settlor”) dies, there is generally no need to register the Trust with the probate court. This is one of the primary reasons that people execute Trusts–to avoid probate.
Despite the Settlor’s best intention to stay out of court, there are times that the court’s involvement is necessary to resolve Trust disputes. The probate court is the appropriate forum when trust disputes arise. Some scenarios in which there may be a need to commence a Trust dispute file to supervise its administration or to compel the Trustee to do something are:
Probably the most common Trust dispute is when the Trustee fails to keep the beneficiaries informed of what is going on in the Trust administration. Some Trustees believe that they have a right to keep the Trust affairs private rather than appreciating their fiduciary duty to the beneficiaries.
Trusts are generally designed to avoid probate. However, the probate court is the appropriate forum when disputes arise. It may be necessary to file a probate action to supervise the administration of the trust or to compel a party to do something. Some examples of scenarios that may involve the need to hire a Michigan probate litigation lawyer are:
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 probate litigation ensues.
Each state generally has a statue that provides the method for determining how proceeds are to be distributed and who are wrongful death claimants. The Court or jury may award damages for reasonable compensation for the pain and suffering undergone by the deceased person while he or she was still conscious between the time of the injury and death. Damages may also be awarded for the loss of financial support and the loss of the society and companionship of the deceased.
Generally, the potential wrongful death claimants are the deceased’s spouse, children of the deceased’s spouse, children, descendants, parents, grandparents, brothers and sisters, and persons who are devisees under the Will.
The court must first determine whether the person that died experienced conscious pain and suffering during the period intervening between the time of the injury and death. Obviously, this is not an easy determination. The court will award to the probate estate (and not directly to the wrongful death claimants), that portion of the damages that is determined to be for conscious pain and suffering.
Next, the court must then distribute those damages for the loss of financial support and the loss of the society and companionship of the deceased directly to the wrongful death claimants.
Again, this is also not an easy determination. Essentially, the wrongful-death claimants must present evidence as to whether they were receiving financial support and the extent of their individual loss of society and companionship.
Call The Probate Pro team in Michigan and speak with a probate litigation lawyer for help in any of the situations listed above.