A Will or a Trust can be contested for a number of reasons, the most common being:
- The document was not executed properly;
- The deceased lacked the mental capacity to make the Will or Trust;
- The decedent was subject to undue influence;
- Fraud; or
- The instrument was revoked.
The standards for creating a valid Will or Trust are fairly clear in Michigan. If a person understands he or she is providing for the disposition of their assets upon their death, knows the nature and extent of their property, knows who would receive his or her estate without the Will or Trust, and understands the Will or Trust, they will be presumed to have had the mental capacity to make the Will or Trust.
An otherwise valid Will can be set aside if the deceased was subject to undue influence when he or she made it. “Undue influence” is defined as influence which is so great that it overpowers the decedent’s free will and causes him to act in accordance with the will of the person who influenced him.
There have been many cases interpreting the word “undue” in this context. Courts have found that the decedent may be influenced in the disposition of his property by specific and direct influences without such influences becoming undue. For example, it is not improper for a person to advise, persuade or flatter the decedent, or to appeal to the decedent’s hopes, fears, or sense of duty or gratitude, provided the decedent’s power to resist such influence is not overcome and his capacity to act with his own free will is not overpowered. A recent court of appeals case allowed a caregiver to keep assets a client gave her because the caregiver’s influence over the client did not amount to undue influence.
An instrument may also be invalid because it was procured through fraud, or has been revoked. If you believe a Will or Trust may be invalid, it is important to hire an attorney as soon as possible. If you fail to raise your objections in court in time, you may be barred from doing so in the future.
