In Michigan, can a person under Guardianship or Conservatorship execute an Estate Plan?

Quite simply, there is no statutory bar for a person under guardianship or conservatorship to execute an estate plan. Warning bells may be ringing but it can be permissible under certain circumstances. Let’s examine this question reviewing two of the theories that are often used when objecting to an estate plan: testamentary capacity and undue influence.

Testamentary Capacity

Some refer to testamentary capacity as being “of sound mind.” Most people can relate to this concept and have seen television dramas and movies in which the issue is addressed.

To have testamentary capacity, a person must generally know his assets (nature and extent of property), know who his heirs are (natural objects of his bounty) and understand that by signing the estate plan he is providing for the disposition of his property at his death in the manner described in the plan (ability to understand he is providing for disposition of his property and general nature and effect of signing). The bar for capacity is low. A person can have all sorts of mental or physical issues and if they meet the above tests on the date of execution, the estate plan will be upheld. In sum, many factors can play into capacity.

Whether or not under guardianship or conservatorship, an individual must have sufficient mental capacity to sign. The capacity required to create, amend, revoke or add property to a trust is the same as required to make a will. MCL 700.2501(1) and MCL 700.7601.

An individual has sufficient mental capacity if:

  1. a) The individual has the ability to understand that he or she is providing for the disposition of his or her property after death.
  2. b) The individual has the ability to know the nature and extent of his or her property.
  3. c) The individual knows the natural objects of his or her bounty.
  4. d) The individual has the ability to understand in a reasonable manner the general nature and effect of his or her act in signing the will. MCL 700.2501(2)(a)-(d).

To be competent to execute a will, a testator must know what property he owns, to whom he wishes to give the property, and how the will disposes of the property. In re Sprenger’s Estate, 337 Mich 514, 521; 60 NW2d 436 (1953); In re Vollbrecht Estate, 26 Mich App 430, 434; 182 NW2d 609 (1970). “Probably testatrix at the time of making the will could not have recited a detailed inventory of all her possessions. But she knew in a broad and general sense what she had….” In re Aylward’s Estate, 243 Mich 9, 17; 219 NW 697 (1928).

Courts will presume that a testator has such capacity; the burden is on those questioning it to establish otherwise. In re Powers Estate, 375 Mich 150, 158; 134 NW2d 148 (1965); MCL 700.3407(c)), In re Sprenger’s Estate, supra; In re Vollbrecht Estate, supra.

Testamentary capacity is judged at the time of the execution of the will, and not before or after, unless the condition of the testator before or after the execution of the will is competently related to the time of execution. In re Powers Estate, supra.

“Weakness of mind and forgetfulness are insufficient to invalidate a will if it appears that the mind of the testator was capable of attention and exertion when aroused and he was not imposed upon.” In re Paquin’s Estate, 328 Mich 293, 302; 43 NW2d 858 (1950). “Mere weak mindedness whether natural or produced by old age, sickness, or other infirmity, unaccompanied by any other inequitable incidents, if the person has sufficient intelligence to understand the nature of the transaction, and is left to act upon his own free will, is not a sufficient ground to defeat a conveyance.” Kouri v. Fassone, 370 Mich 223; 121 NW2d 432 (1963).

“[T]he standard for appointing a conservator is not the same as the standard for determining if a person has the necessary capacity to make a will…By appointing a conservator, the probate court necessarily found that decedent could not manage her property effectively…It is well settled that weakness of mind and forgetfulness are … insufficient of themselves to invalidate a will. By contrast, weakness of mind or forgetfulness may be sufficient to justify the appointment of a conservator where the individual can no longer effectively manage her property and pay her bills.” In re Verdries Estate, unreported Per Curiam Opinion of the Michigan Court of Appeals, decided July 31, 2012 (Docket No. 306095), pp. 2-3(citations omitted). “A determination that a basis for a conservator’s appointment or another protective order exists has no effect on the protected individual’s capacity.” MCL 700.5407(4).

Capacity to execute a will or trust is generally referred to as testamentary capacity. Testamentary capacity is presumed, meaning the person challenging it must prove it does not exist as opposed to the person defending it proving it does exist.

Capacity to Sign a Deed


Undue Influence

Other than mental capacity, the most consistent challenge to a Will and Trust is a claim of undue influence. We all have influence over our loved ones. But, is it undue influence?

Simply put, undue influence occurs when a person overcomes the free will of the trust settlor (hereinafter “settlor”), influencing him into a transaction that he would not otherwise have made and that benefits the influencer. There is generally a high bar for proving undue influence. It is often difficult to prove because people usually do not exert such influence in the presence of others or in an overt or direct manner.

Undue influence is described as follows: To establish undue influence in execution of a will or Trust, it must be shown that grantor was subjected to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel grantor to act against his inclination and free will; motive, opportunity, or even ability to control, in absence of affirmative evidence that it was exercised, are not sufficient. In re Estate of Karmey, 468 Mich 68, 75; 658 NW2d 796 (2003).

“To be classed as ‘undue,’ influence must place the testator in the attitude of saying, ‘It is not my will, but I must do it.’” In re McIntyre’s Estate, 193 Mich 257, 159 NW 517 (1916). Not all influence is “undue.” A person may “advise, persuade, solicit, importune, entreat, implore, move hopes, fears, or prejudices or to make appeals to vanity, pride, sense of justice, obligations of duty, ties of friendship, affection, or kindred, sentiment of gratitude or to pity for distress and destitution, although such will would not have been made but for such influence, so long as the testator’s choice is his own” In re Estate of Langlois, 361 Mich 646, 650, 106 NW2d 132 (1960)

“While undue influence may be established by indirect and circumstantial evidence, it must be of such a nature that the inference may fairly be drawn therefrom that such influence was in fact exercised.” Phelps v. Beard, 209 Mich 266, 274; 176 NW 406 (1920).

“Evidence merely showing an opportunity to exercise undue influence is not enough to take the case to the jury. There is not even enough to present the issue of undue influence to the jury when the evidence shows, without more, an opportunity coupled with a desire to exercise influence, plus an unequal disposition by will incongruent with the laws of intestate succession.” In re Willey’s Estate, 9 Mich App 245, 257-58; 156 NW2d 631 (1967).

To prove undue influence it must be shown that an influencer had motive or opportunity to exert influence, that the influencer did so exert undue influence, that the influence overcame the will of the settlor and that it resulted in a benefit to the influencer that he would not otherwise receive.

Like with capacity, undue influence must be proven based on a number of factors being present (often called a totality of the circumstances). There will almost never be blatant undue influence and even evidence of a direct and express persuasion by influencer may pass the smell test if the evidence does not tend to show that the settlor’s free will was overcome. Instead a person trying to prove undue influence will need the evidence to paint a picture of vulnerability, trust, dependence, control, isolation, estrangement and if possible direct or implied instances of persuasion or force, that over a period of time led the settlor to change his estate plan in a manner he would not have otherwise chosen.

Undue influence often arises as a result of a trusted relationship. Therefore, in certain relationships the law implies a presumption of undue influence. These relationships are labeled as confidential or fiduciary. Examples are attorney-client, doctor-patient, agent-principal (power of attorney). The presumption does not change the ultimate burden of proof of the person challenging the estate plan, can be overcome with contrary evidence.

The Probate Pro is passionate about assisting people involved in Will and Trust contests. Please call The Probate Pro at 1 (833)PROBATE.