Should You Contest a Will or Trust?

Attorneys everywhere implore us to make estate plans; to write wills and trusts that will govern the disposition of our assets when we die. But what happens when the inevitable occurs, and a deceased person’s (also known as a “Decedent”) loved ones think something doesn’t seem right with the estate plan? Perhaps the Decedent left nothing to close family members, never mentioned a will or a trust, or uncharacteristically favored one child over others in his or her estate plan. When should a disinherited person consider filing a will or trust contest with the Probate Court? Will and trust disputes, like all litigation, are costly and should be carefully considered. Often there aren’t sufficient estate assets to justify the filing of a petition with the Probate Court. If the amount of estate assets do warrant consideration of a will or trust contest, a disinherited person should carefully consider the following questions:

  1. Is the Will or Trust being presented as the Decedent’s final wishes actually the most recent estate planning document?  Occasionally, the “Personal Representative” of the Estate or the “Trustee” of the Trust is not aware that the estate planning documents were later rescinded, amended or restated. Clearly, it is very important that, barring the circumstances set forth below, the most recent document controls the disposition of the Decedent’s assets. In rare circumstances a party intentionally conceals or destroys a Will or Trust that does not favor them. In these circumstances, a petition ought to be filed with the Probate Court for admission of the proper Will or Trust.
  2. Is the Will or Trust a forgery? If the signature on the estate planning documents does not appear to be that of the Decedent, or if that signature is not witnessed and notarized, a contest may be warranted. If a signature looks forged, at the very least the witnesses to the signing should be contacted and interviewed.
  3. Was the Will or Trust signed at a time when the Decedent did not have the requisite mental capacity? A will or trust contest may be appropriate if 1) the date of the Decedent’s estate plan is after the date he or she was diagnosed by a physician with cognitive impairment (such as dementia or Alzheimer’s Disease) 2) was during a time period when the Decedent was habitually or chronically intoxicated or 3) was during a time period when he or she was taking prescription medication known to alter alertness or mental status. Notably, these issues are difficult to prove posthumously unless they are well-recorded in the Decedent’s medical records.
  4. Was the Decedent being unfairly influenced by a particular person, who then benefitted from the Decedent’s estate plan? “Undue influence”, as it is referred to by Michigan Courts, involve a close relationship of trust between the favored individual and the Decedent which the individual then used to his or her financial benefit. Signs of undue influence often include isolation of the Decedent during the time period the estate plan is signed, a maligning of other family members and loved ones to the Decedent and participation by the favored individual in the estate planning process. For instance, while it is normal for an elderly person, in particular, to ask family members for transportation to and from an attorney’s office, it is not normal for anyone other than the Decedent to have participated in the estate planning process. Any indication that the Decedent did not meet with the planning attorney alone and in person, did not communicate with the drafting attorney directly, or did not pay for the estate plan him or herself is a red flag that ought to be investigated.
  5. Was the Decedent fraudulently induced to sign the Will or Trust? Did the favored individual make promises to the Decedent or feed him or her false information? If so, a will or trust contest should be considered. While these cases are difficult to prove, it should be noted that elderly and ill people are often very vulnerable to exploitation in this manner.

Even if none of the factors listed above suggest that a will or trust contest is warranted, a Decedent’s family should remember that the Decedent’s spouse and children (including adult children in some instances) may be entitled to certain “statutory” exemptions under Michigan law that could result in tens of thousands of dollars being paid to such family members from an estate regardless of the provisions of an estate plan.

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