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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.

Do You Have a Will or Trust? Will It Accomplish What You Want? Aldrich Legal Services is pleased to assist you with your estate planning needs.

We draft and review wills, trusts and other estate planning documents to help our clients with their estate objectives. Located in Plymouth, Michigan, we assist clients throughout southeast Michigan.

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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.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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