In order to make sure that a testator’s last will and testament truly reflects their wishes, in Michigan there are requirements that must be followed during the drafting and execution process. These requirements are described in Chapter 700 of Michigan’s Estates and Protected Individuals Code. If there are questions related to the validity of a will, Michigan law allows interested parties to initiate a will contest so that the Probate Court judge overseeing the case can determine whether the will should be probated.
Procedure for Contesting a Will
- Standing. The first thing to understand about contesting a will is that on certain people have the legal right to do so. To file an objection to a will, the person must have standing. Those who have standing are those who would benefit financially if the will is invalidated. Typically, this would include beneficiaries named in the will as well as those who would be entitled to inherit in the absence of a will under Michigan’s law of intestate succession. Mich. Comp. Laws § 700.2102 and § 700.2103
- Time constraints. While there are is no statutory deadline for objecting to a will if there is an informal proceeding, if the will is admitted by formal proceeding, objections must be filed with the Probate Court prior to the admission of the will. After the will has been admitted, there is a 21-day appeals period. Once the appeals period has expired, objections will not be heard. There are very limited exceptions to this rule.
Reasons for Contesting a Will
While it is not unusual for someone to be surprised, hurt, or angry upon learning of the contests of a will, the court will dismiss an objection that is not based on valid legal grounds. Valid reasons include:
- Later will. If there is a will that was executed after the date of the submitted will, or if the testator executed a codicil or a document revoking the will, the submitted will would not be valid.
- Improper execution. Michigan law requires that for a will to be properly executed, there are specific requirements. The will must have been signed by the testator or at the direction of the testator in their conscious presence. In other words, if the will is signed by someone other than the testator, they must do so in the presence of the testator while the testator is awake and aware of what is going on. There must have been at least 2 witnesses to the signing and the witnesses must also sign the will. Mich. Comp. Laws § 700.2502. The burden of proving lack of proper execution is on the proponent. Mich. Comp. Laws § 700.3407
- Lack of testamentary capacity. For a will to be valid, the testator must have the legal capacity to execute it. If the testator was mentally incapacitated due to dementia or another type of illness or injury such that they did not understand what it means to execute a will, then they would not have testamentary capacity. In addition, you also must be at least 18 years old to make a will.
- Undue influence. The will is supposed to reflect the wishes of the testator. If someone manipulated the testator into making a will that the testator would not have otherwise made, the will would be invalid. A testator is susceptible to undue influence if they are vulnerable due to illness or isolation. The burden of proving undue influence is on the person asserting it. Mich. Comp. Laws § 700.3407
- Forgery. If the testator’s signature was forged, the will would not be valid.
- Duress. A will must be made out of the testator’s free will. If they are forced to execute a will by threats of physical or financial harm or actual physical harm, the will would not be valid.
Outcome of a Will Contest
If the objectant prevails and the court finds that the will is not valid, the court will proceed as if that will never existed. Typically, that will mean that the decedent will be considered intestate. The court will appoint a qualified interested party to serve as personal representative. The decedent’s assets will be distributed based on Michigan’s law of intestate succession. Mich. Comp. Laws § 700.2101
No Contest Clause
In order to discourage will contests, some testators opt to include “no contest” clauses in their wills. The clauses define a penalty if a beneficiary initiates a will contest. The penalty is often that the objector-beneficiary is disinherited, or their inheritance is limited. Of course, the penalty could only take effect if the will contest fails. No contest clauses are only enforceable in Michigan if there is on probable cause to challenge the will. If there is probable cause but the objector-beneficiary still loses, the court will not enforce the no contest clause. Mich. Comp. Laws § 700.2518