Contesting Wills and Trusts
When a Will or Trust is contested, it can derail a loved one’s final wishes and tear families apart. At Mall Malisow & Cooney, our experienced Michigan Probate Attorneys and staff understand that this can be a difficult time. Our professional and compassionate Attorneys are here to work with families to prevent a contest from arising, or if it does, to help you resolve it equitably and peacefully.
When Can a Will or Trust be Contested?
A contest to a Will or Trust is a type of lawsuit that files a legal objection regarding the validity of a Will or Trust. If the plaintiff can prove to the court that the Will or Trust in question is invalid, the court then “throws out” the Will or Trust, declaring it invalid. This action places the client’s family in the position of having no Will or Trust to direct distribution of assets.
In order for a Will or Trust to be contested, the party filing the objection must have a vested interest in the Will or Trust in question, and the burden of proving the Will or Trust is invalid rests upon them.
Persons Who May Contest a Will or Trust
The following people may have standing to question the validity of a Will or Trust:
- Disinherited or disadvantaged heirs at law. These are family members who would inherit something, or would inherit more, under applicable state law if the deceased person failed to make a valid Will or Trust.
- Disinherited or disadvantaged beneficiaries. Beneficiaries named or given a larger bequest in a prior Will or Trust.
Grounds for Contesting a Will or Trust
- The Will or Trust wasn’t signed as required by state law. In Michigan, the testator must sign, and two witnesses must also sign, each having witnessed the testator’s signature. In addition, a notary public must witness the signatures of the testator as well as both witnesses.
- The person making the Will or Trust lacked the necessary capacity. The capacity to make a Will means that the person understands: Their assets,Their family relationships, The legal effect of signing a Will
- The person creating the Will or Trust was unduly influenced into signing it. As clients age and become weaker both physically and mentally, others may exert influence over the client’s decisions, including how to plan their estate.
- The Will or Trust was procured by fraud. A Will or Trust that’s signed by someone who thinks they’re signing some other type of document or a document with different provisions is one that’s procured by fraud.
How Can You Avoid a Will or Trust Contest?
When formulating a Trust or Will, clients should work to ensure that their final wishes will be fulfilled. If you are concerned about your Trust(s) or Will being contested, we recommend the following:
- Avoid DIY Estate Planning – There are plenty of boxed or DVD Estate planning resources available. However, they cannot offer guidance on every situation, nor can they guide you through difficult Probate issues that may arise.
- Advise Family about your Estate Plan – It isn’t necessary to release the intimate details of your Estate plan; but your family needs to know you have taken the time to create one.
- Use Discretionary Trusts for Beneficiaries – Instead of ignoring a potential beneficiary who may squander their inheritance or use it against your wishes, require their share to be held in a lifetime Discretionary Trust and name a neutral third party (a bank or trust company) as trustee. This will allow the client to control when the beneficiary will receive distributions and who will inherit anything that’s left when the beneficiary dies.
- Keep your Estate Plan Updated – Estate planning is an ongoing process. As laws and your family, assets, and circumstances change, so should your Estate plan. Such vigilance will discourage challenges.
Probate Litigation over Wills and Trusts
Occasionally, disputes will arise over the validity of Wills and Trusts. This is when an experienced Michigan Probate Attorney can provide the guidance, advice, and representation you need to settle contests equitably and peacefully. We know that families are ready to move on with their lives, and lengthy, difficult Probate proceedings benefit no one.
The Estate Planning Law Firm of Mall Malisow & Cooney are fierce advocates for your interests, and we work with family members and the courts to resolve Probate issues efficiently, and with tact and integrity. Our Attorneys can investigate allegations of fraud or the validity of legal documents to ensure your family member’s wishes are carried out in the manner in which they were intended.
If the Will or Trust of a loved one is being contested, contact Mall Malisow & Cooney at 248-419-0946 or 866-699-1800 to arrange a consultation with one of our Michigan Probate Attorneys.