Authored by: Anisha D. Rutkowski
While most wills are carried out as intended without conflict, there are circumstances in which a will may be contested. Will contests generally occur amongst family members. Typically, the circumstances involve an unexpected beneficiary or devisee named in the will, a close relative being disinherited from the will, or certain relatives being given larger shares of estate assets than others in the will.
What is a common basis for contesting a will? Lack of “testamentary capacity.” To create a valid will in Michigan, the person making the will, also known as the “testator,” must have proper testamentary capacity at the time the will is made. This means, essentially, that the testator must be an adult who has sufficient mental capacity to understand exactly what he or she is doing by making the will. The testator should know the assets he or she owns and what impact the will has on those assets. The testator should be aware of his or her relatives that would inherit as heirs by law. In a will contest, a relative may argue that the testator lacked testamentary capacity at the time the will was created and, therefore, the will is invalid.
A will contest based on “undue influence” commonly goes hand in hand with a contest based on lack of testamentary capacity. Undue influence means that someone was pressuring the testator into creating the will in the way it was written, and the pressure was so coercive that the will was written in a way that the testator would not have wanted it written but for that pressure.
Some will contests have little or nothing to do with the testator’s mental capacity. For example, a testator may make a new will and fail to properly destroy an old one. Then, the testator dies and his relatives find multiple wills, creating confusion as to which is the proper will. And sometimes a will may be contested because it is simply not properly signed or witnessed.
Therefore, simply executing a will does not guarantee that it will not be subject to a will contest. Because of the various bases on which a will can be contested, it is important to make sure your will is executed in the proper manner and that you appropriately destroy any old wills. And if you anticipate a will contest based on mental capacity issues, you should certainly seek the advice of an experienced Estate Planning attorney.
If you have concerns regarding a will contest or are considering contesting a will, contact our office for a free initial consultation. 248-792-9193 or 1-800-ESTATES
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