When a person dies and leaves a will directing how their estate should be distributed, it is common for the majority to be left to their children. However, sometimes children of the decedent do not believe the will accurately reflects what their parent wanted. This usually arises when some children are left a disproportionate share or are disinherited. When this happens, there are ways to challenge the will in court.
How to Challenge a Parent’s Will
Before someone can challenge a will, they have to establish that they are named in the will or would have inherited from the deceased had there not been a will. Under Michigan law, children as well as spouses, grandchildren, parents, and sometimes siblings, are people who, depending on the circumstances, would have inherited if a person died without a will or “intestate”. Accordingly, children of the decedent have what is called standing to go to court and challenge or “contest” their parent’s will.
To contest a will, you must have a legal basis for doing so. Merely being dissatisfied with what your parents left you is not ordinarily sufficient. Some common reasons for contesting a will are as follows:
- Improperly Executed—meaning the will was not proper under Michigan law. Usually, this involves the will not being properly signed or witnessed by two witnesses.
- Lack of Capacity—meaning the decedent did not have the mental state to know what they were doing when the will was executed. Capacity is determined as of the time the will was signed, not when the person died.
- Undue influence—meaning, in the words of a court: the person making the decision was “subject to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel the grantor to act against his inclination and free will.” The best way to put it is that there has been some unfair persuasion which resulted in the person doing something against their free will.
- Fraud—meaning the person signing the will was given false information or otherwise misled before signing the will.
- Forgery—meaning the will can be shown to be a forgery.
- Later Will or Codicil—Meaning there is evidence to show the existence of a more current will or added provision referred to as a “codicil” can be a ground for contesting a will.
Once the will is contested in court, there will be a court investigation which will include the contesting party providing evidence to support their claim against the will. From there the personal representative will be charged with defending the will with their own evidence. After the presentation of the evidence from both sides, the court will issue a decision regarding the validity of the will.
Some wills will contain a “no contest” clause or “in terrorem” clause which says that any beneficiary who tries to challenge the will be disinherited. They are put in place to discourage beneficiaries from bringing a legal suit to invalidate a will. These clauses are enforceable in Michigan unless the person challenging the will shows that there is probable cause for challenging the will.
Challenging a loved one’s will can be complicated as it involves presenting medical, financial and other evidence to the court regarding the validity of a will. Our office has experienced attorneys who can help you prepare your challenge and present the evidence in a manner which can support your claim. Please contact us if we may be of assistance.