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Contesting a Will in Michigan

A “will contest” (the legal term for contesting a will) is a legal dispute between family members or people who were close to the person who created the will.

It is, just what it sounds like, a contest.

In one corner is typically a person who is benefiting from a will or trust; everything is left to them. In the other corner, are the family members or friends who are disinherited.

While it is certainly anyone’s right to name whoever they want in their will or trust – and I have met many fine and conscientious beneficiaries – I have also seen less-conscious ones who manipulate older relatives for their own personal financial gain.

Over 25 years my experience contesting wills has taught me that while you can talk all day about the legal theories for winning like a lack of competence or undue influence, what ultimately sways a jury are the facts.

To discover the facts when I become involved in cases like this, here are some of the things I do:

1. Subpoena all written checks over the last 5 years. After reviewing the checks, I often find a continual degradation of the signature of the decedent. While this factor in and of itself does not prove lack of competency, placing these checks next to each other on an exhibit board is a powerful piece of evidence. If Aunt Mary was preparing and signing her own checks in 2007, and in 2012 she is scribbling her signature with an “X”, this makes a judge or jury very suspicious.

Sometimes, I’ve discovered that the person who is benefiting under the trust or will was signing all the checks. In one case, I found a granddaughter buying personal items from her Grandfather’s account. She then had her parents disinherited. Needless to say, the granddaughter quickly came to settlement after the facts were disclosed.

2. Subpoena the nursing home records and police reports. The people at nursing homes and assisted living centers keep very careful nurses’ notes. They usually carefully document bizarre behavior of residents for their own protection. Other attorneys often overlook this source of information. If Grandma signed a trust leaving everything to Uncle Joe, and three weeks earlier, Grandma was chasing ducks down at the pond at the facility in her nightgown, the jury or judge are going to be very suspicious about alleged competency at the time of the signing of the trust. This will be true no matter who witnessed the subsequent will.

3. Review prescriptions and medications. For example, I always subpoena the pharmacy records. I look for patterns of excessive refills. Moreover, I look at who was filling those prescriptions. Again, if Aunt Suzie is feeding Grandma with Vicodin and Xanax, this strongly supports a claim of undue influence or lack of competency.

Of course, it isn’t ever one single fact that makes the difference. I don’t rely on one particular piece of evidence to build up the argument of undue influence, a lack of competency or other legal arguments against setting aside the will or trust. Sometimes, each of the foregoing individual events may not be enough. However, when they are all combined, they can create a compelling narrative of incompetence.

Frequently, I have created an exhibit for the court that has a time line showing 3 or 4 of these events all coming together at a week or two before or after the signing of the will or trust. All of these factors are important in developing the case to set aside the will or trust.