Elements of Valid Will
1) must be in writing
2) signed by the testator (or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction ‘a proxy signer’)
3) signed by at least two individuals, each of whom signed within a reasonable time after witnessing (1) the singing of the will, or (2) the testator’s acknowledgement of that signature, or (3) acknowledgement of the will
note: witness can be an interested party
Holographic Will
DiSH
- dated
- signed by testator (need not be at end of will) and;
- the material portions must be in the testator’s handwriting (typing does not count)
Dispensing Power
If requirements of formal will are not met and the requirements of a holographic will are not met, if the proponent of the will shows by clear and convincing evidence that the testator intended the change by additional or alteration it will be enforces
-note also comes up when there are changes on face of will
Revocation of Will
Can be revoked by:
- physical act (tearing it up with intent to revoke, can be done by another person as long as it is at testator’s request and in his conscious presence, however, even if not, may be valid under dispensing power)
- subsequent instrument
- operation of law (divorce/family changes)
- note: revoked will is not revived unless it is shown from the circumstances that the testator intended to revive the earlier will
Anti-Lapse Statute
General rule: if beneficiary predeceases the testator, the gift lapses and becomes part of the residue of the estate.
Michigan has Anti-Lapse Statute which states the if a devisee fails to survive the testator, and that person is a grandparent or a grandparent’s ascendant or a stepchild of either the testator or the donor of a power of appointment exercised by the descendants, provided they are alive 120 hours after the testators death.
-Note: statute names the taker of the gift; it does not look to the beneficiary’s will
Intestate Succession
- Way of dividing property if the testator did not have a will, his will is invalid or his will did not make a complete disposition
- Generally, property is given to testator’s spouse and sometimes children or parents
- -people included in definition of child: unborn baby (even if dad doesn’t know about it), adopted child and child born out of wedlock
- -people not included in child: foster child, stepchild, or son- or daughter-in-law
Ademption
When specifically bequeathed property in the will is no longer a part of the estate at the testator’s death
MI has presumption of nonademption.
Where another statutory provision does not compensate the beneficiary for the value or replacement of the specifically bequeathed property, the devisee is entitled to the value (at time of disposition) of the property unless the facts and circumstances show that the ademption was intended by the testator or within the testator’s manifested plan of distribution
-note: this is a right to things like any insurance proceeds for injury to the specifically devised property unpaid at the death of testator or property procured by the testator as a replacement for specifically devised property
Class Gifts
Testator can make proper gift to class of people, however only members who survive the testator share the gift -Class closes when testator dies
Capacity
- Must be 18 years and of sound mind to make will
- at time the individual executes the will individual is able to:
- -understand he or she is providing for the disposition of her property after death
- -know the nature and extent of his property
- -know the natural objects of his bounty, and
- -has ability to understand in a reasonable manner the general nature and effect of his act in signing the will
Undue Influence
To prove:
- burden of proof on constant
- to show undue influence was exerted and
- influence caused the testator to make a gift he otherwise wouldn’t make
Presumption of undue influence arises upon introduction of evidence that would establish: existence of a confidential or fiduciary relationship between grantor and fiduciary, fiduciary benefits from the transaction, and the fiduciary had opportunity to influence grantor’s decision
-note: spousal relationship does not raise presumption
Intestate Succession
Applies when:
- decedent left no will
- decedent’s will is denied probate
- decedent left a will but does not make a complete disposition of the estate
