Michigan’s Estates and Protected Individuals Code (EPIC) sets out the laws about challenging a last will and testament.

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Who May Challenge a Will

Under EPIC, an interested person has standing to challenge a will. The statute defines “interested person” broadly, but it generally includes heirs, devisees, beneficiaries, a spouse or child, creditor, someone who has a property right in or claim against the estate of the decedent, and a person who has priority for appointment as personal representative.

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Grounds for Challenging Validity of a Will

EPIC sets out formal requirements for creating a valid will.  A will is valid only if all of the following are true (unless excused under certain sections):

1. The will is in writing.

2. Signed by the testator, or in the testator’s name by someone else, in the conscious presence of the testator and by his/her direction.

3. Witnessed by at least two individuals, each of whom signs within a reasonable time after witnessing either the signing of the will (or the testator’s acknowledgment of signature or acknowledgement of the will).

 

If a will was made without some of the formal requirements (e.g. it wasn’t properly witnessed), it may still be valid as a holographic will if it is dated, and the testator’s signature and the material portions are in the testator’s handwriting. Even if a document does not satisfy the execution or holographic requirements, it can be treated as if valid if the person offering it (the proponent) establishes by clear and convincing evidence that the decedent intended the document or writing to be their will.

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Failure to meet these requirements, as well as issues like lack of testamentary intent, or lack of mental capacity, could be grounds for invalidity of a will.

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Process for Challenging a Will

While EPIC doesn’t lay out a single step-by-step procedure for challenging a will, the law provides the framework and requirements that such a challenge must meet. When someone seeks to probate a will (or use a will in settling an estate), an interested person may file an objection in that court. EPIC gives probate courts exclusive jurisdiction over matters “that relates to the settlement of a deceased individual’s estate, whether testate or intestate … including … construction of a will.”  The interested person must state the grounds upon which they believe the will is invalid (for example, failure to meet execution requirements, lack of testamentary intent, etc.).  Then the burden is on the proponent of the will to show by clear and convincing evidence that the decedent intended the document or writing to be their will. The court will hold a hearing where evidence is presented (witness testimony, documents, handwriting evidence, etc.) about whether the statutory requirements are met or excused.  After the hearing, the court will decide whether the will is valid or invalid. If invalid, the estate may be treated as having no valid will or may be treated as though a previous, valid will is in effect.

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Whether you are trying to create a will that will withstand a legal challenge or whether you have concerns about a loved one’s will, Maple Law Group can help you understand your options.  Call (734) 519-1019 or email info@maplelawgroup.com for a free consultation.