PROBATE 15: Motion to remove personal representative for undue influence.

In this case, the deceased passed away in 2013, and appellee was appointed personal representative of his estate. Appellants, heirs of the deceased, filed a motion to remove appellee as personal representative, arguing that appellee had been reckless and self-serving in administering the estate. Appellants also filed a motion to invalidate their father’s will, appellee’s power of attorney, and a deed whereby their father’s home was transferred to appellee upon his death.

They alleged that the will and power-of-attorney documents were executed when their father was incompetent due to cognitive impairment. Appellants argued that the deed was signed at that time as well. The trial court denied the motion to invalidate the three documents and instead set the matter for trial. After an evidentiary hearing, the court denied the motion to remove appellee as personal representative.

MCL 700.3407(1)(c) states that a contestant of a will has the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.  Appellants spent a considerable portion of their appellate brief arguing that they established undue influence. Appellants also argue that they established that their father lacked capacity at the time of signing the will, power of attorney, and deed.

MCL 700.2501 states: An individual has sufficient mental capacity to make a will if all of the following requirements are met:

(a) The individual has the ability to understand that he or she is providing for the disposition of his or her property after death.

(b) The individual has the ability to know the nature and extent of his or her property.

(c) The individual knows the natural objects of his or her bounty

Appellants did produce a physician’s affidavit indicating that their father lacked testamentary capacity because of cognitive impairment. However, appellee produced evidence specifically, the deposition testimony of the attorney who prepared the will and witnessed the signing of the will and the power of attorney that the father was lucid and understanding at the time of the signing. This same attorney witnessed the signing of the deed and testified that he did not seem amiss at all mentally and appeared to be competent and understanding at the time. This attorney emphasized, in fact, that he was adamant about wanting appellee to be deeded the house.

Appellants argue that because they provided medical evidence and appellee did not, the trial court was bound to grant their motion. But appellants cited no legal authority that medical testimony on behalf of the non-moving party is necessary. When the evidence is viewed in the light most favorable to the non-moving party a genuine issue of material fact is apparent. The trial court did not err by denying appellants’ motion.

Probate litigation is complex and requires the attention of experienced and knowledgeable counsel. Given the emotional nature of these disputes and their financial impact on all involved, it is critical that anyone involved in such a dispute retain highly qualified legal counsel.

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