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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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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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