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Can A Conservator Make Or Change The Ward's Last Will And Testament?

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A conservator in Michigan has the authority to manage the protected person's estate. This can be a misleading phrase because the protected person is still alive so there is not an estate in the classic sense that someone died and property must be administered and distributed by the probate court. The protected person's estate comprises all of the personal property, real property and financial assets that require management and oversight. Does this mean that the conservator can make a last will and testament for the ward? Can he or she make changes to the will that already exists?

The answer is no. The Estates and Protected Individuals Code clearly provides that, "[a]fter hearing and upon determining that a basis for an appointment or other protective order exists with respect to an individual for a reason other than minority, the court, for the benefit of the individual and members of the individual's immediate family, has all the powers over the estate and business affairs that the individual could exercise if present and not under disability, except the power to make a will." MCL 700.5407(2)(c). A conservator lacks both the power to make and alter the ward's last will and testament.

This doesn't mean that the conservator should be ignorant of the ward's existing estate planning. When "investing the estate, selecting estate property for distribution..., [or] utilizing a power of revocation of withdrawal available for the protected individual's support", the "conservator and the court shall take into account the protected individual's estate plan as known to them, including a will, a revocable trust of which the individual is settlor, and a contract, transfer, or joint ownership arrangement originated by the protected individual with provisions for payment or transfer of a benefit or interest at the individual's death to another or others." MCL 700.5428(1). The conservator has the explicit authority to examine the ward's last will and testament. MCL 700.5428(2). This means that the conservator should avoid divesting and distributing specific personal property that is intended to be a bequest to a specific devisee under the will. In addition, a conservator making estate distributions to individuals supported by the ward should take care to do so in those proportions spelled out by the residue provision's in the ward's will or trust.

The conservator should make every reasonable effort to preserve the estate until death. If the protected individual dies, the conservator's authority is immediately suspended and he or she can no longer exercise power over the ward's property. He or she does not automatically become a personal representative with the ability to administer the decedent's estate. However, the conservator has the following rights and responsibilities after the ward's death under MCL 700.5426(4):

  • "[T]he conservator shall deliver to the court for safekeeping a will of the deceased protected individual that has come into the conservator's possession, shall inform the personal representative or a beneficiary named in the will of the delivery, and shall retain the estate for delivery to a duly appointed personal representative of the decedent or another person entitled to the delivery."
  • "If within 42 days after the protected individual's death another person is not appointed personal representative and an application or petition for appointment is not before the court, the conservator may petition to exercise a personal representative's powers and duties in order to be able to proceed to administer and distribute the decedent's estate."

The fact that an individual is under the authority of a conservator doesn't mean that he or she cannot make a last will or testament. As long as the ward has the requisite mental capacity and is not under undue influence, then he or she can create and sign a will specifying those final wishes. Even though the ward can no longer conduct his or her business dealings, a ward's testamentary capacity is cosnsidered a much lower standard then what is required to enter into a contract.  This means that the ward can still sign a will and articulate how assets should be divided after death. In fact, the law presumes that a testator has sufficient capacity to make a will. 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.

A testator may still have capacity to execute a will even if he or she has a legal guardian or conservator appointed to help manage his or her affairs during the period that the will was made. In re Vallender's Estate, 310 Mich 359, 17 NW 213 (1945). However, the conservator cannot use his position to coerce the ward into drafting a last will and testament that is favorable to the conservator.  Otherwise, it may be void for undue influence. "To establish undue influence it must be shown that the grantor was subjected 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." Kar v Hogan, 399 Mich 529, 251 NW2d 77 (1976). If the person who stands to benefit from a testator's last will or trust is a fiduciary of the testator (e.g. guardian or conservator), then there is a PRESUMPTION of undue influence against that fiduciary. The fiduciary, if later advocating for the will, may have to produce witnesses and evidence to show that the last will and testament is not the product of undue influence. The probate court will not tolerate testamentary documents that resulted from abusive conduct of the conservator.

Michigan law makes every effort to respect the final wishes of testators when able to communicate them, even when under a guardianship or conservatorship. A ward wishing to make a last will and testament may want to have it created under the supervision of a probate lawyer to ensure all of the legal requirements are met. If you are a conservator and have questions about your responsibilities to a ward's estate planning, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

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