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PROBATE 44: The court held that the probate court did not err by declaring a will executed by the decedent invalid on the basis that she lacked testamentary capacity to execute it and that it was the product of petitioner’s undue influence.

Defendant and Decedent met in August 2017. In approximately November 2017, Decedent began talking constantly about wanting Defendant to take her to see an attorney for the purpose of changing her will. On March 19, 2018, Defendant filed a petition to be appointed Decedent’s guardian.  The probate court approved a full guardianship on March 27, 2018. On May 4, 2018, while Defendant was at work, she received a call from the Decedent’s resident facility that Decedent’s condition was “severe.”   After further discussion, Defendant decided that she would draft a will on her own and she typed up a document.  Defendant admitted that she was aware that Decedent already had a will. However, she claimed that Decedent had told her that all previous wills and legal documents had been revoked. According to the record before us, Decedent had previously executed two wills, both prepared by an attorney, in 2008 and 2009. Over the course of the next several days, Decedent’s condition deteriorated. She died on the morning of May 12, 2018, at the age of 85.

Defendant filed a petition nominating herself as personal representative of Decedent’s estate and requesting that the May 4, 2018 will be admitted to probate. Because Decedent was not survived by any known heirs, the State Public Administrator received notice of the petition. MCR 5.125(A)(1), MCL 700.3306(1). On behalf of the State Public Administrator, the Attorney General (“AG”) filed an objection to Defendant’s petition and argued that the May 4, 2018 will did not meet the requirements of a valid will under MCL 700.2502 because there was only one witness to the testator’s signature. The AG further argued that Decedent lacked the testamentary capacity to execute the will and that the will was the product of Defendant’s undue influence. After scheduling an evidentiary hearing, the probate court concluded that Decedent lacked the capacity to execute the will on May 4, 2018.  Further, given the apparent validity of Decedent’s May 29, 2009 will, the probate court appointed a successor personal representative. This appeal followed.


The standard of review on appeal in cases where a probate court sits without a jury is whether the court’s findings are clearly erroneous.  A finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made, even if there is evidence to support the finding. 


Defendant first argues that the contestants failed to overcome the presumption that Decedent possessed the requisite testamentary capacity to execute her will, and therefore, the probate court erred by denying admission of the May 4, 2018 will on that basis. We disagree. To have testamentary capacity, a testator must “be able to comprehend the nature and extent of his property, to recall the natural objects of is bounty, and to determine and understand the disposition of property which he desires to make.” It is presumed that a testator had sufficient capacity to execute a will. The contestant of a will has the burden of establishing lack of testamentary capacity, undue influence, fraud, duress, mistake, or revocation. MCL 700.3407(1)(c). Whether a testator had the requisite testamentary capacity is judged at 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. The evidence presented during the evidentiary hearing established that Decedent, at the time she signed the May 4, 2018 will, was 85 years old and had suffered for years from Alzheimer’s and dementia.  The fact that Defendant formulated the intent and then created the will without any prompting from Decedent is relevant to determining whether Decedent possessed testamentary capacity. After reviewing the record in its entirety, we conclude that the evidence supports the probate court’s finding that Decedent was unable to plan and effect any testamentary conveyances, without prompting and interference from others. Accordingly, the probate court did not clearly err when it denied admission of the May 4, 2018 will into probate on the ground that Decedent lacked the testamentary capacity to execute that will.

Next, Defendant argues that the contestants failed to establish that Decedent’s May 4, 2018 will was the product of undue influence. We also disagree. To establish undue influence, it must be shown that the grantor was subjected to threats, misrepresentations, undue flattery, fraud or physical or moral coercions sufficient to overpower volition, destroy free agency and impel the grantor to act against his inclination and free will. The fact that Defendant’s actions unduly influenced Decedent, is further supported by the fact that the resulting will did not actually evidence Decedent’s wishes.  Undue influence such as will invalidate a will, must be something which destroys the free agency of the testator at the time when the instrument is made, and which, in effect, substitutes the will of another for that of the testator. Defendant acknowledged that she “definitely” knew that it would have been Decedent’s wishes to have the Leader Dogs for the Blind included in her will. Nonetheless, Defendant never  asked Decedent if that continued to be her desire and she never included this charitable entity in the will she drafted. In sum, the probate court did clearly err when it found that Defendant was not able to successfully rebut the presumption of undue influence. Further, contestants satisfied their burden of proving a claim of undue influence. Accordingly, the probate court did not clearly err when it also invalidated the May 4, 2018 will on the ground that it was the product of Defendant’s undue influence.


We affirm the probate court’s order declaring Decedent’s May 4, 2018 will invalid on the basis that Decedent lacked testamentary capacity to execute the will and that the will was the product of Defendant’s undue influence.

Facing Probate and Estate Administration

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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.

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