Legal Question in Wills and Trusts in Michigan
Contesting A Will
my father recently passed away & my oldest brother(POA), & sister took my father in to change his will from his second wife(which he divorced, after he was in a home),changed the will when my father had alltimer's(sp ?),& the said will says that me & my 2 other sybilings get nothing. Is there a state law in MI that says u can't do that we'd have to have at least a $1.00, & can the brother do that while my father has that disease? What rights do I have if any? Thank you, gail
2 Answers from Attorneys
Re: Contesting A Will
If your father was incompetent at the time the new Will was prepared you can have it thrown out and the terms of the old Will will prevail. If the challenge to the current Will is successful and there wasn't another Will then the rules of intestate succession apply. There is no requirement that any mention is made about $1.00 going to heir. The reason it was done in the past was to show that the testator did not forget to give a gift to a family member. There have been successful challenges to Wills made in the past when it was proven that the testator would not have left out a son or daughter if he/she was in their "right" state of mind.
Even though your father mat have dementia there are times when he could be coherent if such was the case when the Will was prepared the Will might be good. A case may be made for undue influence if the new Will is overly gererous to a particlular individual who may have coerced your father into preparing the Will. You should set up a meeting with an attorney so that you can present your facts and have the attorney investigate to see if there is a legal way to invalidate the current Will. Good luck.
Re: Contesting A Will
A will is valid unless the person creating the will was competent when signed, us lawyers call this testamentary capacity. Further, a will can be voided if it was freely and voluntarily made. An example of this would be undue influence or duress. What is interesting in you fact situation is that the Durable Power of Attorney usually creates a confidential relationship which gives rise to a presumption of undue influence thus putting the burden on your sibling to prove dad was competent when he created the will.
I am very familiar with Alzheimers Disease as I am the Azheimers Assoc. Public Policy chair and specialize in this area of probate and elder law. You may very well have a case that needs further looking into.
Call or e-mail me. [email protected]. I also have a new phone number. 248.641.7070
Don Rosenberg
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