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PROBATE 43: The court affirmed the probate court order dismissing appellant’s petition to set aside the decedent’s 2018 will and admit his 2003 will for failure to create a genuine issue of material fact.

Appellant is one of three surviving children of Decedent, along with two other siblings.  Decedent executed his last will in 2018, revoking a prior will from 2003. The 2018 will affirmatively made no dispositive provisions for appellant or her descendants. Ultimately appellant filed an amended petition alleging lack of incapacity by decedent and undue influence on decedent. Appellant requested that the 2003 will be admitted to probate in lieu of the 2018 will.  Appellant appeals from an order of the probate court dismissing her petition to set aside the decedent’s 2018 will and admit his 2003 will and to set aside certain ladybird deeds, for failure to create a genuine issue of material fact. MCR 2.116(C)(10). We affirm.

ANALYSIS

We review a trial court’s grant or denial of summary disposition de novo. We review a motion brought under MCR 2.116(C)(10) by looking at the evidence in the light most favorable to the non-moving party and determining whether it raises a genuine issue of material fact. Moreover, it is presumed that a testator has the mental capacity to make a will. Additionally, “testamentary capacity is judged as of the time of the execution of the instrument, and not before or after, except as the condition before or after is competently related to the time of execution.” And the burden is on the person who contests the will to establish the lack of testamentary capacity.

Applying this test to the first two of appellant’s arguments, those arguments fall short. As to appellant’s brief quotation from a medical record, that record was created 12 weeks before the decedent executed the will. And it merely references an assessment of the decedent while in the hospital. Not only does the passage quoted by appellant fail to establish whether the decedent had testamentary capacity at the time that he was in the hospital, it certainly does not establish whether, even if he lacked capacity at that time, he still lacked capacity 12 weeks later. Appellant overlooks an important principle, namely, that there is no rule that capacity once lost is lost forever. That is why the court must always look to the testator’s capacity at the time the will is executed, not whether there was a lack of capacity at some other time. Next, we turn to appellant’s argument that decedent’s reference to her by a prior married name in the will reflects a lack of capacity. While this is perhaps a stronger argument, we find it still to come up short. The only statutory factor that it even arguably relates to is MCL 700.2501(2)(c), whether decedent knew the natural objects of his bounty. While the use of one of appellant’s prior married names, one that she had not used in a dozen years, may reflect some confusion by decedent, it nonetheless reflects that he was aware that she was his daughter. That is, he knew that she was a natural object of his bounty and the will reflects his decision to disinherit her.

Turning to the issue of undue influence, appellant again provides a scant basis to support her claim that her brother exercised undue influence over their father. Appellant argues her brother had opportunity to influence his father. But mere opportunity does not establish that undue influence existed. Similarly, even accepting appellant’s characterization of her brother as “domineering,” she does not bring forth actual evidence that he dominated his father to the point of engaging in undue influence to change his will. To establish undue influence, it must be shown that the “deceased’s free agency was destroyed and he acted under such coercion, compulsion, or constraint that the will did not truly proceed from him according to his wishes, which is the test of undue influence.” None of the evidence to which appellant directs our attention would allow a reasonable trier of fact to reach such a conclusion.

The trial court’s decision is affirmed.

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