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WILLS/TRUSTS 29: Burden is on the will contestant to establish the will is void for lack of testamentary capacity.

Decedent executed a will in 1976, naming her daughter as the sole beneficiary and personal representative. Decades later, and after the relationship between the daughter and decedent evaporated, decedent called a local estate planning attorney, who had done some work for her in the past and told him she wanted to make a new will.

New Will

Decedent clarified that she did not want to leave anything to family members, and her entire estate was to go to petitioner. Decedent signed the new documents in 2011, making petitioner the personal representative and sole heir under the new will.

Motion to Set Aside Will

Decedent died in 2013. The daughter filed an application for informal probate of decedent’s estate and acceptance of appointment as personal representative under the 1976 will. The petitioner filed a petition to set aside the informal probate of the 1976 will and be named successor personal representative, arguing the 2011 will should be admitted and, under its terms, petitioner should be named successor personal representative.  The daughter argued that the 2011 will was invalid because decedent lacked testamentary capacity due to her suffering from Alzheimer’s disease or dementia. The daughter filed a motion for summary disposition in the probate court to set aside the 2011 will.

Will Contestant

The right to contest a will is statutory and the burden is on the will contestant to establish the will is void for lack of testamentary capacity. Whether a decedent had testamentary capacity is judged as of the time of the execution of the instrument, and not before or after. A testator must know what property she owns, who her family is, and how the will disposes of the property to have testamentary capacity. Proof of old age, mental weakness, or forgetfulness are insufficient to establish a lack of testamentary capacity.

Attorney Testimony

When decedent signed the 2011 will, the attorney came to her house for the signing and testified that decedent greeted him, knew who he was and why he was there, and was a gracious host. The experienced estate planning attorney testified that nothing that evening led him to be concerned decedent lacked an understanding of what she was doing in signing the will. In his opinion, decedent had testamentary capacity to execute the 2011 will.

Do You Need an Attorney to Draft a Will?

Wills are an essential part of any estate plan. Without a validly executed will, your estate will pass by the rules of intestate succession at the time of your passing, which may or may not achieve your goals. A carefully drafted and properly executed will can pass your property to your loved ones in the manner of your choosing. A will can also help ensure that your children and other family members understand your wishes, thus minimizing the risk of disputes and litigation.

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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.

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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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