How to Contest a Will or Trust


     By The Prince Law Firm

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Undertaking legal action to contest a will or trust is a step most of us will never have to take. However, if you suspect that your loved one's will is not what he or she intended, there are several things that you can do legally to correct the situation.

Preliminary Issues

In order to contest a will or trust, you must either be a devisee of the contested will, a beneficiary of the contested trust, or would have inherited if the deceased had died without a will (intestate). The courts consider people who meet either of these conditions to have standing. Michigan considers spouses, children, grandchildren, parents and in certain circumstances, siblings, to be interested persons should the deceased die intestate.

It is common for a will or trust to have a clause that states that any beneficiary or interested person who contests the document will forfeit any bequests that are included in the will or trust or otherwise be penalized. Under Michigan law, such a "no contest" clause is not given effect if there is probable cause for instituting proceedings to contest a will. See MCL 700.2518.

Grounds for Contesting a Will or Trust

In addition to having legal standing, you must have evidence of impropriety surrounding the will or trust. The most common grounds for contesting a will or trust are (1) lack of capacity, (2) undue influence by another, (3) fraud, (4) the existence of a more recent will or (5) that the will was not witnessed or signed properly.
Lack of capacity refers to the document being invalid because the person who signed the will or trust was not mentally sound at the time the will or trust was created. The probate court only concerns itself with the mental state of the deceased at the time the will or trust was signed. It does not take into account state of mind at the time of death.

Undue influence is the allegation that the deceased was pressured into signing the will or trust by a person who benefits under the will or trust. Examples of undue influence may include the use of threats, withheld medications, or manipulated separation between the deceased and other members of their family.
A will may be invalid if the person making the will or trust relied on a false statement or fraudulent misrepresentation. An example of fraud is where the testator signs a document not knowing that it is a will. Another example is where a grantor is told that a trust provides for a certain beneficiary and signs it, when actually the trust benefits an entirely different person.

An improperly witnessed or signed will or trust is also grounds for invalidating the document. If a will contest is brought alleging that the will was not witnessed by the required number of individuals or that the signatures of the witnesses have been falsified, the courts can require the witnesses to appear to verify their participation or signatures.

When a will or trust is contested, the probate court is required to investigate the claim and the admission or approval of the document will be suspended until a decision is made as to the value of the contest. The responsibility for providing evidence that a will or trust is invalid is largely on the individual who is bringing the claim. Once a reasonable amount of credible evidence is provided to the court, the personal representative of the will may be compelled to produce evidence to support the contested will.

Ambiguous Language

In instances where the language of the will or trust is unclear or confusing and there is a dispute between beneficiaries about the meaning of the document, a petition to the probate court requesting interpretation of the language will or trust and intent of the testator or grantor can be filed. If the court decides that the language of the document is clear, then it is executed without change and without regard to circumstances or events outside of the document. However, if the court decides that the language is ambiguous, evidence outside the normal review of a document such as the personal history of the deceased and/or the beneficiaries can be taken into consideration. Language is considered ambiguous if two or more meanings can be applied. Once the court has ruled that the language is ambiguous, it will distribute the estate based on its interpretation of the intent of the will or trust.

Regardless of the circumstances surrounding your decision to contest your loved one's will or trust, it is advisable to consult with an attorney with experience in probate litigation.

ABOUT THE AUTHOR: Prince Law Firm
At The Prince Law Firm, southeast Michigan estate planning lawyers stay abreast of all relevant changes in Michigan state and federal tax and probate law. As attorneys, we craft creative and unique estate plans for our clients. As lecturers and authors on estate and tax planning and probate litigation matters, we are respected by the Michigan legal community. Pat Prince and Shaheen Imami are both trained mediators, and through our affiliate, Michigan Dispute Resolution & Mediation Services (MDR&MS) offer full service alternative dispute resolution (ADR) services.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.