Now Accepting New Clients!

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.


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.

Facing Probate and Estate Administration

If you have lost a loved one, the last thing you should have to deal with at this time is the confusing and often frustrating process of probate.

Aldrich Legal Services offers comprehensive guidance throughout the probate process, including the filing of petitions, notices to creditors, distribution of assets to beneficiaries and other services required throughout the probate process. We offer probate services for clients whose loved ones died with or without a will.

Contact Aldrich Legal Services

Speak to a Pro: (734) 404-3000

MICHIGAN REAL ESTATE 95: Property owners did not place a condition upon the delivery of the deed; rather, they delivered the deed to themselves.

When the delivery of a deed is contingent upon the happening of some future event, title to the subject property will not transfer to the grantee until the event has occurred. However, in this case A and J did not place a condition upon the delivery of the deed; rather, they delivered the deed to themselves, then deposited the deed with their attorney with the instruction to record the deed only upon the happening of a future event, thereby placing a condition only upon the recording of the deed.

MICHIGAN PROBATE 57: Brother granted permanent guardianship of siblings.

At a multiday hearing to address the extension of the guardianship, the eldest children, the mother’s relatives and friends, and school personnel testified regarding the mother’s care of the children, appellant’s treatment of and interaction with the children, and the eldest siblings’ role in aiding the mother to raise the children.

FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

Don't let a bad decision, unfair contract, or a messy divorce get in the way of a promising future!
Contact the experienced team at Aldrich Legal Services today to schedule your free initial
and secure reliable and trustworthy representation today!
Get the Help You Need From a Team You Can Truly Count On: (734) 404-3000