WILLS/TRUST 12: Person contesting a will has the burden to establish lack of mental capacity.

Decedent died a widower on January 4, 2016, leaving behind no children. Appellee, as personal representative of decedent’s estate, filed a will that decedent had executed in July 2014 (7/14 will) with the Wayne Probate Court.

The 7/14 will gave decedent’s boat and 10% of decedent’s residual estate to appellee. The remaining 90% of decedent’s estate was given to decedent’s nephew and appellant’s brother.

Appellant filed a petition requesting supervision of the administration of the estate and to set aside decedent’s 7/14 will, contending that decedent lacked the requisite testamentary mental capacity at the time that the 7/14 will was executed. Appellant asked the court to accept decedent’s will that was signed in April 2013 that left 40% of decedent’s estate to appellant and nothing to decedent’s nephew.

After discovery, appellee moved for summary disposition under MCR 2.116(C)(10), contending that no genuine issue of material fact existed regarding decedent’s mental state in -2- July 2014 because appellant had not produced any evidence which raised a question of whether decedent was competent to properly execute his will.

In support of that contention, appellee offered, among other evidence, the affidavit of decedent’s attorney. Decedent’s attorney stated that he drafted decedent’s 7/14 will at decedent’s express direction, and did not have any contact with any of decedent’s family members regarding decedent’s estate. At the time that the 7/14 will was executed, he believed that decedent was mentally alert and had full capacity to execute any legal documents.

In response, appellant offered his own deposition testimony and the affidavits of decedent’s neighbor, and decedent’s sister-in-law. Appellant asserted his belief that decedent had been increasingly paranoid in the last couple years of his life. Decedent’s neighbor stated that decedent had begun to do a lot of weird and unusual things during the last two years of decedent’s life. Decedent’s sister-in-law claimed that decedent’s confusion and paranoia had led decedent to mistakenly change decedent’s will to eliminate appellant as a beneficiary.

The trial court granted appellee’s motion for summary disposition. The trial court concluded that appellant did not produce sufficient evidence to establish a genuine issue of material fact regarding decedent’s mental capacity to properly execute his 7/14 will.

MCL 700.2501(2) provides that a testator has sufficient mental capacity to properly execute a will if four 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.

(d) The individual has the ability to understand in a reasonable manner the general nature and effect of his or her act in signing the will.

An individual’s mental capacity to properly execute a will is presumed.  A person contesting a will has the burden of establishing lack of testamentary intent or capacity. Furthermore, proof of old age, physical weakness, or forgetfulness is insufficient to establish a lack of mental capacity.

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REAL ESTATE 36: Plaintiff argued that her claim was not time-barred because it did not accrue until the grandmother’s death.

Plaintiff’s interest in the subject property is best characterized as a remainder estate, because her right to possession of the property was postponed until the occurrence of a specific contingency, that being the deaths of the grandparents. Plaintiff pursued this action within the 15-year limitation period; accordingly, this action is not barred by MCL 600.5801(4).

LITIGATION 6: The terms of the agreement prevails over the course of performance.

The trial court determined that under the UCC, the express terms of the parties’ agreements prevailed over the course of their performance and course of dealing. Although a course of performance may show that parties have waived a specific contractual term under MCL 440.1303(6), the statute does not similarly provide that a course of dealing may demonstrate waiver.

PROBATE 27: Petitioner filed a petition for mental-health treatment.

In support of the allegations, petitioner attached clinical certificates from a physician and a psychiatrist who observed respondent at the hospital. Both doctors diagnosed respondent with bipolar disorder, determined that she displayed a likelihood of injuring herself and that she did not understand the need for treatment, and recommended a course of treatment that consisted of 60 days of hospitalization and 90 days of outpatient care.

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