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An introduction to will contests under Michigan law

A person with legal interest in a deceased loved one’s estate can object in court to a will on several grounds.

Usually when a loved one passes away, the terms of the will are carried out relatively smoothly through official administrative and court procedures in Michigan. Unfortunately, there are times when the terms of a will or the circumstances surrounding its execution raise concern or suspicion, putting the will's validity into question.

The way to have a will declared valid and its terms carried out (probated) is to file it with the court register for informal administration or in state probate court for formal administration.

An interested person, usually someone who has been disinherited by the will in question or who as a relative would be entitled to a larger share of the estate under the law if there had been no will, may file an objection in writing with the court if he or she believes grounds exist to have the will declared invalid. This kind of lawsuit is often called a will contest.

One important basis upon which to contest a will in Michigan is lack of testamentary capacity. The testator (person making the will) must be a legal adult and have sufficient mental capacity for purposes of executing a will at the time of signing. Incapacity might be shown by drug use, the symptoms of mental illness, insane delusion, the effects of medication, memory loss or other similar evidence.

Testamentary capacity requires that the testator understand the nature and effect of making a will, that the act of executing a will results in disposition of property after death, the nature of his or her property and who the close family members are that would normally inherit that property.

Another basis for contesting a will that goes to the testator's state of mind is undue influence. Undue influence means the testator experienced coercive pressure from a person of trust - pressure so extreme that the testator effectively lost his or her own free will and drafted the will in a way he or she otherwise would not have, such as by disinheriting a loved one in favor of an unexpected or surprising choice of beneficiary, usually the person exerting the undue influence.

Michigan law also allows will contests based on:

  • Improper execution such as having not met form, signature and witnessing requirements, or the requirements of a valid holographic (handwritten) will
  • Fraud
  • Duress
  • Forgery
  • Lack of testamentary intention
  • Mistake
  • Revocation such as by physical destruction or execution of a later valid will that replaces the earlier one

Anyone who is considering whether a will should be contested or who faces a contest over a will he or she filed for probate should speak as soon as possible with an experienced estate litigation attorney. Legal counsel can advise the individual of the various legal options available. Legal representation can be important as probate law is complicated procedurally, including requirements of filing, documentation, notice and deadlines.

From their office in Sterling Heights, Michigan, the lawyers at O'Reilly Rancilio P.C. represent clients in southeastern Michigan in both sides of will contests and in other probate litigation as well as out-of-state people with interests in Michigan estates.

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