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Initiating A Will Contest (Part 5 of 5): Fraud, Duress, Mistake and Other Grounds

by | Nov 1, 2018 | Wills, Trusts And Estates |

Initiating a will contest part 5 of 5 fraud duress mistake and other grounds

The most common grounds for contesting a last will and testament in the probate court are:

  1. Mental Incapacity (See Part 1).
  2. Undue Influence (See Part 2).
  3. Improper Execution of the Will (See Part 3).
  4. Revocation of the Will (See Part 4).

While these are the most frequent challenges asserted in court, they are certainly not exclusive. The following is an examination of other grounds in Michigan that can be alleged to contest a will:


  • The contestant of a will has the burden of establishing fraud. MCL 700.3407(c).

  • According to Michigan Model Civil Jury Instruction 170.46, fraud exists if:
  1. There was a misrepresentation of material fact(s) to the decedent, and;
  2. The decedent relied on and was influenced by that misrepresentation in disposing of his or her property by will.
  • In re Spillette Estate, 352 Mich 12; 88 NW2d 300 (1958) – Fraud is closely related to undue influence in that it isn’t enough to show that a misrepresentation was made to the decedent, but that the decedent was truly deprived of his own free will to not consider anything else but the misrepresentation. A contestant alleging fraud should consider “[t]hat influences to induce testamentary disposition may be specific and direct without becoming undue as it is not improper to advise, persuade, solicit, importune, entreat, implore, move hopes, fears, or prejudices or to make appeals to vanity, pride, sense of justice, obligations of duty, ties of friendship, affection, or kindred, sentiment of gratitude or to pity for distress and destitution, although such will would not have been made but for such influence, so long as the testator’s choice is his own and not that of another.” Id at 17-18.


  • The contestant of a will has the burden of establishing duress. MCL 700.3407(c).
  • Apfelblat v National Bank Wyandotte-Taylor, 158 Mich App 258, 263; 404 NW2d 725 (1987) – Duress requires the following:
  1. Compulsion or coercion by which one is illegally forced to act; and
  2. The victim acts by fear of serious injury to person, reputation or fortune.
  • Duress is a related species of undue influence but uses more extreme acts to accomplish the same goal. While undue influence means that the testator acted because he or she was deprived of the free will to do anything else (and would not otherwise be the testator’s choice), duress means more specifically that the testator was forced to act due to physical threats, extortion or blackmail.


  • Montgomery Ward & Co v Williams, 330 Mich 275, 279; 47 NW2d 607 (1951) – Mistake of fact defined as “a misunderstanding, misapprehension, error, fault or ignorance of a material fact, a belief that a certain fact exists when in truth and in fact it does not exist.”
  • A will may be invalid as a mistake if the contestant can show that the decedent didn’t know that he or she was executing a last will or testament, or the decedent was unaware of the actual contents in the document, because the decedent thought he or she was executing some other document.


  • According to Michigan Model Civil Jury Instruction 170.43:
  1. “An insane delusion exists when a person persistently believes supposed facts which have no real existence and so believes such supposed facts against all evidence and probabilities and without any foundation or reason for the belief, and conducts herself or himself as if such facts actually existed.”
  2. “It is NOT an insane delusion if the decedent capriciously or arbitrarily disliked the contestant (or anyone else) or harbored unjust suspicions or prejudices against the contestant (or anyone else).”
  3. “It is NOT an insane delusion if the decedent had mistaken beliefs, unjust suspicions, arbitrary dislikes or prejudices as long as there were facts upon which the decedent may have based his or her belief, regardless of what little evidential force such facts may possess. While on consideration of those facts the belief may seem illogical or without foundation, a decedent cannot be said to suffer from an insane delusion simply because he or she has not reasoned correctly.”
  4. “However, if the decedent was suffering from an insane delusion at the time he or she made the will, and if that insane delusion influenced the decedent in disposing of the property in the manner he or she did, then the will is not valid.

  • In re Powers’ Estate, 375 Mich 150; 134 NW2d 148 (1965) – The decedent created numerous wills (both holographic and otherwise) that made specific bequests to a number of people she saw little or nothing of in her lifetime. The decedent, at the time her most recent will was created, operated on the hallucination that her parents were alive and she was caring for them despite the fact they have died years prior. The probate court declined to instruct the jury on insane delusions since it believed it was the same as mental incapacity. The Michigan Supreme Court reversed the probate court and held that having an insane delusion IS NOT the same as lacking the mental capacity to make a will, so juries should be instructed on both claims separately.


  • A document purporting to be a last will and testament might have all the legal requirements of a valid will, but may actually be intended to be a rough draft. A cleanly written document will likely be accepted as the final draft, but a document with multiple erasures, cross-outs and handwriting in the margins might appear as brainstorming rather than a final product. If the court finds a document to be a draft of a will, it will not be admitted to probate.
  • In re Estate of Reid, unpublished per curiam opinion of the Court of Appeals, issued February 27, 2014 (Docket No. 311336) – The Michigan Court of Appeals upheld the denial of a handwritten document purporting to be will where, even though the title of the document was “Last Will and Testament” and included a clause that she was “of sound mind”, it was largely incomplete statements, attached notes and various names crossed out. Even though this document technically met the requirements of a holographic will, the probate court and the court of appeals agreed that the barely legible notes and unfinished thoughts on two sides of personal stationary was intended to be a draft of a will, not a will itself, so it was properly not admitted.

Successfully challenging and prevailing someone’s last will and testament is a difficult task. The probate court often tries to give as much effect as possible to a testator’s final wishes. This type of litigation is expensive, time-consuming, and often tears families and friendships apart. Only the advise of an experienced probate attorney can help you determine if your have a valid legal claim to defeat a will or whether you can even muster the evidence to prevail.

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.

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