When The Gloves Come Off (eBook)

Chapter 1:
What Is Probate Litigation and
Why Write This Book?

I. What is Probate Litigation?

As an initial note, I solely refer to Michigan law because that is where I am licensed and I do not make any claims as to how other jurisdictions handle these cases as it would be outside my area of expertise and outside the scope of this book to do so. Probate litigation refers to contested/litigated cases under the jurisdiction of the probate court. These matters tend to revolve around challenging the validity of a will, trust, power of attorney, or some other legal document; challenging whether a person needs a guardian (“GA”) or conservator (“CA”); or challenging the reports or acts of a fiduciary (personal representative [“PR”], trustee, agent under DPOA, etc.). In essence, these are family feuds.

Probate litigation differs in many respects from general civil litigation, personal injury, domestic relations, and criminal cases. To begin with, the parties to the case are typically related to one another—family members. This is different than most other cases because civil cases tend to involve a plaintiff versus an insurance company, and criminal cases involve the state versus a criminal, or sometimes civil cases involve people who know each other but aren’t related, such as neighbors or business associates. In domestic relations cases, such as divorce, custody, or parental rights cases, the parties typically start out related, as in a divorce case, and they clearly have had a significant personal relationship with each other. However, once the assets have been divided between the parties, the only other ongoing issues are between parents disputing parenting time or how much money one may be paying to the other in support. They are unique from most other types of cases, but they are also unique from probate cases.

For example, in probate litigation, individuals don’t necessarily have to be an active part of the lawsuit in order to be involved. In probate litigation, individuals are considered to be “interested parties” if they fall under one of the categories in the four pages of the Michigan Court Rule (“MCR”) MCR 5.125. Being an interested party (“IP”) to litigation means that the person is entitled to copies and notices regarding all court filings, all discovery events (depositions), and all court events (hearings). They may decide that they want nothing to do with the lawsuit, but they will still receive all notifications throughout the case. And if the case gets resolved between the main parties, the interested parties must also sign off on the agreement even if they haven’t been a part of the litigation. Again, this is unique to the probate litigation process.

Another unique feature of probate litigation is that the MCRs contain an entire chapter of rules addressing probate proceedings. The rules in Chapter 5 are limited, but they prevail over the rules in the general court rules where they exist. For example, in probate courts, the pleadings are called “applications or petitions” unless you are bringing a civil suit in probate court, then you use a “summons and complaint.” In many ways, the probate court still functions as a court of equity. It’s also been called the “Court of Compassion” because it helps individuals get court assistance with minors, elderly, and incapacitated individuals.

In a will or trust contest, typically an adult child is omitted from the will or trust and they challenge the validity of the document based on a lack of testamentary capacity or based on undue influence over the decedent by someone who benefitted more than the challenger. Lack of testamentary capacity can be difficult to prove, however. Often the medical records of the decedent are difficult to obtain due to HIPAA regulations or the records do not include any smoking gun diagnoses of incapacity. In addition, capacity is a moving target. In particular, dementia patients tend to suffer cognitive decline over a period of time, and in various areas of the brain. Therefore, on any given day, or at any given hour for that matter, their cognitive abilities and mental capacity may swing from very functional to total confusion or memory loss. And the determining time of capacity is the time that the document was signed.

In Michigan, where the Estates and Protected Individuals Code (“EPIC”) is the controlling statute for testamentary capacity, the standard for having testamentary capacity is

MCL 700.2501: (1) An individual 18 years of age or older who has sufficient mental capacity may make a will.

(2) An individual 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.

Essentially, if they know who they are, who their children/family members are, and a general idea of their assets, and they understand that by signing the will they are providing for the distribution of those assets upon their death, they pass the test.

Fortunately, the drafters of the Estates and Protected Individuals Code Michigan Trust Code (“MTC”) made it easy to determine the requisite capacity for creating a revocable trust in MCL 700.7601: “The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.”

In order to prove a lack of capacity, the challenger must almost always have the testimony of the drafting attorney of the document and witnesses of the signing of the document by the decedent, to the extent possible. It’s difficult to find witnesses who will admit that the decedent didn’t understand what they were signing, especially the drafting attorney, since this would undoubtedly lead to a malpractice suit being filed against them.

The other avenue for challenging the validity of a will or trust is to prove that the document was signed as a result of undue influence over the decedent. Again, this determination is made based on the time of the document signing and it’s hard to find witnesses and attorneys who will support the claim. Undue influence is a more complicated and difficult claim to support. Although it seems easier to prove than something as documented as a person’s cognitive capacity, particularly in the elderly, it’s actually much more challenging to prevail on.

Undue influence is a result of threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency, and impel the person to act against the person’s inclination and free will. At first blush this sounds easy to prove. However, there are often indicators of undue influence, but no actual undue influence occurs, or if it does, it’s virtually impossible to prove in court. Indicators that often cause a family member to be suspicious of undue influence include the decedent placing significant trust in another person (often an unlikely person such as a caregiver); isolation of the decedent from family, friends, or other people who may pick up clues of a bad situation; some type of vulnerability of the decedent such as advanced age, limited mobility, cognitive decline, etc.; and few or no outside advisors such as an accountant, lawyer, or investment advisor (although I have been involved in a case where the investment advisor was the individual accused of exercising undue influence).

Certain situations will lend themselves to undue influence as well, including the recent death of a spouse or child, a lack of family members or nearby family members, dysfunctional family dynamics, living alone or with the influencer, fear of being moved to a care facility, use of multiple medications, and other situations that make a person vulnerable to exploitation. These situations make proving specific acts of undue influence even harder to prove because there typically isn’t anyone around to witness the threats, misrepresentations, and influence.

Of course, the undue influence must result in some type of financial gain by the influencer. Sometimes that’s in the form of a new or updated will or trust, or by adding the influencer to bank accounts or as beneficiaries, or even by the influencer being paid for “caregiving services” or other household services with or without the decedent’s knowledge and far in excess of what the open market would bear.

In certain situations, there is a presumption of undue influence. This occurs when “[t]he person claiming that undue influence occurred has the burden of proving the following:

1. a confidential or fiduciary relationship exists,

2. the alleged perpetrator benefits from a transaction, and

3. the alleged perpetrator had the opportunity to influence the alleged victim in making the transaction.” (In re Erickson Estate, 202 Mich App 329, 331.)

When a presumption of undue influence exists, it can actually muddy the waters. The burden of proof is not shifted but the accused must then offer evidence regarding the transaction(s) in question. It’s a technical shift and one that is not well understood by most involved in these cases.

The...