What are the reasons Wills are contested? Today’s ElderCare Answer Provided by One of Michigan’s TOP Elder Law Attorneys

Question:  What are the reasons Wills are contested?

Answer:  There are four primary reasons that a will can be contested. Knowing the reasons that a will can be contested can be helpful for reducing the chances of a dispute among your heirs, whether you are putting together your own will and or want to know if yours should be reviewed by a probate attorney.

And, of course, these will become very important if you ever find yourself in the unfortunate position of needing to know your legal rights when it comes to a will challenge.

Reason #1: The Testator Did Not Have Testamentary Capacity To Sign a Will

In Michigan, there are four components to testamentary capacity (or what Michigan law calls a “sufficient mental capacity”): (1) understanding that he or she is providing for the disposition of his or her property after death, (2) knowing the nature and extent of his or her property, (3) knowing the natural objects of his or her bounty (i.e., family members), and (4) understanding in a reasonable manner the general nature and effect of the act of signing the will.

While this legal test for testamentary capacity may sound complicated, experienced Michigan probate litigation attorneys can help make sense of it, and whether it can be met in your case. This depends on many different factors. For example, the witnesses to the will signing can be crucial – especially the estate planning attorney who prepared the will. In a will contest, their testimony can be the critical aspect of determining whether the person signing the will was in the right frame of mind and body to do so. Having an experienced estate planning attorney stand behind the will is often a determining factor in will contest cases in Michigan.

Reason #2: The Testator Was Subject To Undue Influence

The essence of this claim is that an individual was coerced, compelled, or otherwise forced into signing a will. Undue influence from any party is usually very difficult to prove, because there rarely is direct evidence of the influence. But it can also be very hard for the party defending the will against an undue influence claim, because of what Michigan law calls, “the presumption of undue influence” that applies in many cases.

Smart estate planning attorneys will take extra precautions in the right cases. For instance, we sometimes recommend making a videotape of the conversation relating to the will drafting and signing, to demonstrate that the person is executing the will of his or her own free choice. Having an independent attorney involved in the drafting process is also critical. In fact, even many attorneys in Michigan don’t properly handle will signings, which can make undue influence cases even murkier.

Reason #3: The Will Didn’t Follow The Formalities Of Michigan Law

This reason does not occur as often as undue influence or mental incapacity, but it still can be important in the right case. Traditionally, Michigan had very specific and clearly codified rules regarding what is needed for a valid will. For the most part, these require that witnesses be present and sign the will too, and that the will be dated and signed, with certain language that attested to the validity of the document. When a will was handwritten in the signer’s own handwriting, the rules could be relaxed, however, and proving a valid will was easier.

With some recent law changes, however, Michigan law now allows greater leniency to the rules regarding will formalities. If the person arguing in favor of the wills validity can show, by clear and convincing evidence, that the document was intended to be a will, it can still be accepted in probate court as a valid will, even without meeting the test of formalities. This sometimes leads to more complicated will contests in probate court, because family members often disagree if a certain writing was intended to be a will or not.

Reason #4: The Will Was Created Or Signed Due To Fraud

If the Testator was tricked into signing a will, family members can dispute the document’s validity down the road. For example, if the Testator believed that he or she was signing another legal document like a power of attorney, then the will could be considered procured by fraud.

While cases in Michigan based on fraud often go hand-in-hand with undue influence claims, there can be important differences. This is especially true when the person signing has problems with eyesight, such as macular degeneration. Testimony of witnesses can be especially vital in a will contest case where there are allegations of fraud.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

An ElderCare Matters Partner
Don L. Rosenberg, Attorney and Counselor
The Center for Elder Law
Troy, Michigan
An ElderCare Matters Partner

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