Estate planning is often a priority that falls towards the bottom of the list for most people. Death seems so far away and unimaginable when you are in your prime and thinking about career, family and your next vacation. However, it suddenly becomes a priority when faced with a terminal illness, advanced age or impending death. As a result, many people create a last will and testament at a point in their life when they are not as mentally sharp or possibly suffering from a physical or mental illness. Sometimes, people will suddenly and dramatically change their will before death to disinherit a child that treated them badly or leave the entire estate to a treasured caretaker at the end of life. Maybe all blood relatives were disinherited, and the entire estate was left to an organization or charity.
When family members are shocked by the discovery of unexpected or unbelievable estate planning, it is tempting for them to believe that the testator was not in his or her right mind. This belief seems reinforced if the individual was afflicted by a mental illness such as dementia or Alzheimer's disease. These family members then come to an attorney's office to see what they can do to contest the will or have it set aside so the estate can be distributed "in the way that mom and dad intended for it to be divided".
According to MCL 700.2501(2), a person has sufficient mental capacity to make a will if all of the following requirements are met.
- (a) The individual has the ability to understand that he or she is providing for the disposition of his or her property after death.
- (b) The individual has the ability to know the nature and extent of his or her property.
- (c) The individual knows the natural objects of his or her bounty.
- (d) The individual has the ability to understand in a reasonable manner the general nature and effect of his or her act in signing the will.
The law and the court presume that the testator has sufficient capacity to execute a will. The burden of proof is on the contestant to show that the testator did not have the legal capacity to make the will. MCL 700.3407(c). The legal incapacity alleged must be established at the time that the will was executed. So how hard is it to prove mental incapacity?
The Michigan Supreme Court heard an appeal of a will contest in 1927 regarding the decedent, Mary Ferguson, who died widowed and without children. Born in rural Scotland, she was poor, had very little education and suffered from incurable cancer. Towards the end of her life, she created several codicils to her will over a period of three years and ultimately left 27 bequests to a group that included three sisters, numerous nieces and nephews, an orphanage, a homeless shelter, religious missions, her chauffeur, her nurse and an old employee of her husband. A brother, who was willed nothing, and a sister, who was willed $1,500.00, challenged the will on the basis that Mrs. Ferguson lacked the mental capacity to execute such a document and would have not made these numerous bequests if she was not senile. The trial court upheld the validity of the will and the Michigan Supreme Court affirmed, stating the well-established rule regarding testamentary legal capacity:
"If Mrs. Ferguson, at the time she executed the will, had sufficient mental capacity to understand the business in which she was engaged, to know and understand the extent and value of her property, and how she wanted to dispose of it, and to keep these facts in her mind long enough to dictate her will without prompting from others, she had sufficient capacity to make the will. A testator may be suffering physical ills and some degree of mental disease and still execute a valid will, unless the provisions thereof are affected thereby." In re Ferguson's Estate, 239 Mich 616, 627; 215 NW 51 (1927).
The burden on the challenger of the will is high due to the prevailing public policy to find executed instruments to be valid, especially if that instrument represents someone's last wishes on earth. Here are some circumstances were the court have upheld the mental sufficiency of the testator to execute a will.
- In re Vallender's Estate, 310 Mich 359, 17 NW 213 (1945) - Legal capacity of testator to execute a will was upheld where individual had failing eyesight and became totally blind, and his mental state was described as "childish", "odd", "nervous" and "moroseful". The testator even had a legal guardian appointed to help him manage his affairs during the period that he executed a will. Even in modern times, the standard for appointing a guardian or conservator to an alleged incapacitated person is much lower than the standard of setting a will aside due to mental incapacity. The record clearly indicated that the testator understood what property he possessed, the fact he was making a will, the natural objects of his bounty and who he was bequeathing it to.
- In re Cotcher's Estate, 274 Mich 154, 264 NW 325 (1936) - Legal capacity of testator to execute a will was upheld where there was evidence that the individual failed to remember such objects as "the nature of her grandnephew's occupation; the death of an acquaintance, the given names of her three grandnieces". The Michigan Supreme Court observed "[w]eakness of mind and forgetfulness, therefore, are not sufficient to invalidate a will or deed, if it appears that the testator's or the grantor's mind was capable of attention and exertion when aroused, and was not imposed upon...". Id at 161. "It is to be expected that the mind of a person 80 years of age will not be as keen as in early youth, but evidence of some loss or impairment of mind does not of itself present a question of mental incompetence that should be submitted to a jury; nor does an inability to carry through a connected conversation present such a question." Id at 161.
- In re Grow's Estate, 299 Mich 133, 299 NW 836 (1941) - Legal capacity of testator to execute a will was upheld even where an acquaintance testified at trial that the individual "became crippled with rheumatism and as a consequence he was stooped and limped; that he was deaf; that he had the appearance of being unkempt; that his clothes were not kept cleaned and pressed; that he was unshaven and chewed tobacco; that he would come to the store and apparently not see or notice anything; that he would burst into tears and say he didn't know what he was crying about; and that about the fall of 1938, his attitude towards his nephews and nieces changed." Id at 138. "Instances of forgetfulness, habits of untidiness increasing with advancing years, and failure to exhaust the subject of conversations, afford no evidence of lack of testamentary capacity." Id at 138.
- In re Solomon's Estate, 334 Mich 17, 53 NW2d 597 (1952) - Legal capacity of testator to execute a will was upheld where individual suffered from a rare skin disease that could result in mental disturbances and easily developed various delusions and fixations directed at friends and acquaintances. The individual changed her will leaving daughters a nominal amount due to the mistaken suspicion that her daughters stole money from her. While hospitalized after executing her will, she made accusations that there were "cops" in her room, that people tried to hit her head with a stick and that she was drowning. However, evidence suggested she had her faculties at the time of creating the document. Regarding her mistaken belief of theft, if there are any facts (no matter how little evidential force they have) on which the testator based her belief, it would not be an insane delusion and the court should not overturn a will because the testator did not reason correctly.
As you might observe, it is extremely difficult to overturn a will on mental incapacity grounds and most challenges fail. However, it does not mean that the personal representative should ignore such challenge and decline to take action. It is true that the best witness that can clear up any issues regarding testamentary capacity (the testator) is deceased and cannot speak from beyond the grave. Nevertheless, a personal representative has a DUTY to defend the will. Therefore, a challenge cannot be ignored and they must be prepared to defend against a petition challenging these instruments in a court of law. Fortunately, a personal representative has a right to hire an attorney at the expense of the estate to assist him or her in their duties, up to and including challenges to the legitimacy of the will.
If you are contemplating a challenge to a will, or you are a personal representative needing to defend against such a challenge, then do not hesitate to contact the knowledgeable attorneys at Kershaw, Vititoe & Jedinak PLC for assistance with your probate matter.