MICHIGAN WILLS AND DECEDENTS' ESTATES PROFESSOR JULIA BELIAN UNIVERSITY OF DETROIT MERCY SCHOOL OF LAW CHAPTER 1: INTRODUCTION; INTESTATE SUCCESSION A. Introduction • MI tests the law of Wills AND intestacy (i.e., the state of not having a will). • When addressing a particular Wills essay, apply the rules in this order: 1. Look for non-probate assets (e.g., life insurance, trusts, etc.); 2. Look at whether there is a valid will; and 3. If assets remain in the estate, apply the rules for intestacy. B. Intestacy and Intestate Succession 1. Generally o Designed to transfer a decedent’s property at death to a specified group called the decedent’s ____________________ at law Living people do not have heirs. Heirs are defined by the law at the moment of ____________________. o MI intestacy is governed by the Estates and Protected Individuals Code (“EPIC”). o If a decedent dies without a will, the court does not have any information regarding the decedent’s desires, so the court applies the rules of _______________________ succession. o There are three steps to applying intestate succession: 1) Identify whether there is a ________________________________________, and if there is, carve out the share for them; 2) Look for ____________________ of the decedent (i.e., lineal descendants); 3) If there are no issue, look for _________________________ heirs (e.g., siblings, cousins) 2. Spouse’s Share o Surviving spouse gets a particular amount that is defined and adjusted by statute Note 1: The specific amount is subject to change every year. Exam Tip 1: On the exam, give the statutory value, followed by the phrase “adjusted for inflation.” o The dollar amount off the top varies depending on how many issue there are and whose they are (i.e., the kids are from both spouses, from only the decedent, or from only the surviving spouse).
Transcript
MICHIGAN WILLS AND DECEDENTS' ESTATES PROFESSOR JULIA BELIAN
UNIVERSITY OF DETROIT MERCY SCHOOL OF LAW
CHAPTER 1: INTRODUCTION; INTESTATE SUCCESSION
A. Introduction
• MI tests the law of Wills AND intestacy (i.e., the state of not having a will). • When addressing a particular Wills essay, apply the rules in this order:
1. Look for non-probate assets (e.g., life insurance, trusts, etc.); 2. Look at whether there is a valid will; and 3. If assets remain in the estate, apply the rules for intestacy.
B. Intestacy and Intestate Succession
1. Generally
o Designed to transfer a decedent’s property at death to a specified group called the decedent’s ____________________ at law
Living people do not have heirs. Heirs are defined by the law at the moment of ____________________.
o MI intestacy is governed by the Estates and Protected Individuals Code (“EPIC”). o If a decedent dies without a will, the court does not have any information regarding the
decedent’s desires, so the court applies the rules of _______________________ succession. o There are three steps to applying intestate succession:
1) Identify whether there is a ________________________________________, and if there is, carve out the share for them;
2) Look for ____________________ of the decedent (i.e., lineal descendants);
3) If there are no issue, look for _________________________ heirs (e.g., siblings, cousins)
2. Spouse’s Share
o Surviving spouse gets a particular amount that is defined and adjusted by statute
Note 1: The specific amount is subject to change every year.
Exam Tip 1: On the exam, give the statutory value, followed by the phrase “adjusted for inflation.”
o The dollar amount off the top varies depending on how many issue there are and whose they are (i.e., the kids are from both spouses, from only the decedent, or from only the surviving spouse).
Note 2: The amounts of the surviving spouse’s share are covered in detail in the Outline, Section I.C.1–4.
o The surviving spouse will receive a specific dollar amount off the top (either $100,000 or $150,000, adjusted for inflation).
o The spouse will also get a certain percentage of the remaining estate (either half or three-quarters).
Surviving Spouse’s Share
Decedent’s Surviving Heirs Dollar Amount Off the Top
Percent of Remaining Estate
No Descendants, No Parents Entire Estate N/A
No Descendants, At Least One Parent $150,000 75%
All Descendants are also Descendants of Surviving Spouse $150,000 50%
Descendants, Surviving Spouse has Descendants not from Decedent $150,000 50%
At Least One Descendant is Not a Descendant of the Surviving Spouse $150,000 50%
All Descendants are from Decedent only, None from Surviving Spouse $100,000 50%
3. Descendants’ Shares
o Once you determine the share of the surviving spouse, consider surviving issue.
Example 1: Decedent dies intestate and leaves three surviving children. After the surviving spouse takes a share, each child receives one-third of what remains in the estate.
o When some or all of decedent’s issue have died and left surviving issue, the distribution scheme changes; Michigan uses the per capita at each generation approach:
1) At the first generation with surviving issue, allocate one share to each member:
• Who is ____________________ at the time of decedent’s death; or • Who predeceased the decedent and left surviving issue. • If the decedent’s issue predeceases the decedent and does not leave surviving issue,
they do not have a share allocated to them. • If a member in this first generation is alive, they receive their share • If a member has died (but left surviving issue) their share must descend to the next
2) The shares of all predeceased members (who left issue) are combined, dropped to the next generation, and divided equally among all the descendants of the predeceased issue.
Example 2: Decedent (D) had three children (A, B, and C). B and C have predeceased D. B had one child (1) and C had two children (2 and 3).
A, B, and C each receive one share because all three are either alive or died with surviving issue. B and C cannot receive their shares because they have died. Instead, their interests are combined into a 2/3 share, which is dropped down to the next generation. The 2/3 share is distributed equally among their living issue. B’s child (1) and C’s children (2 and 3) each receive 1/3 of the 2/3 share, which is 2/9 each. Note that A received her 1/3 at the first generation.
4. Collateral Heirs
o If there is no surviving spouse or issue, the collateral heirs will take a share. o Similar to dividing for a decedent’s issue, but start with a different common ancestor (e.g.,
parent, grandparent) o Up, over, and down approach:
1. Up from the decedent to the first common ancestor who survives or leaves issue; 2. If the ancestor has died, move over to the branch of heirs you will follow; and 3. Down to the collateral heirs—siblings, nieces, nephews
Editorial Note 1: If you would like to review an example of distributions to collateral heirs, you may pause the lecture and read through the example below.
Example 3: Decedent (D) dies without a surviving spouse and without heirs. D’s parents have predeceased D, but D has a surviving sister through the same parents. D’s brother has also predeceased D, but has left surviving issue.
Here, D’s estate would go up to Parent, the first ancestor who survived D or left surviving issue. Because Parent has died, the estate goes over to D’s siblings, and down to collateral heirs in the same manner as it would be distributed to descendants: Sister receives half as an issue who survived D. Because Brother left living issue, his half goes to the next generation. Because Niece is the only member of that generation, Niece receives the other half of D’s estate.
Editorial Note 2: The lecture continues with other intestacy issues, below.
C. Other Issues Involving Intestacy
1. Surviving Spouse
o Survival: Must survive the decedent by __________ hours (or __________ days) in order to take as an intestate heir.
Example 4: Decedent dies on Monday and his spouse dies on Wednesday of the same week. The spouse is not a surviving spouse in Michigan because she did not survive the requisite length of time.
o Spouse: Someone is a spouse if they were legally married to the decedent in the state where the marriage took place.
Spouses remain spouses until they have a final order of _________________; separated spouses are still married.
2. Issue
o Main question is who constitutes a ____________________ (or issue) of the decedent o Statutes generally determine whether there is a parent-child relationship.
Editorial Note 3: If you would like to review some of the more common issues with the parent-child relationship, you may pause the video and review them below. These are discussed in more detail in the Outline, Section I.D.
o A child conceived or born during the marriage is presumed to be the natural child of both parents. Outline, Section I.D.
o Adopted children and their descendants are treated the same as natural children. Outline, Section I.D.1.
o Stepchildren and foster children who have not been adopted do not have inheritance rights, unless the doctrine of equitable adoption applies. Outline, Section I.D.3.
o A nonmarital child inherits from the natural father only if a parent-child relationship has been established (through one of several methods). Outline, Section I.D.4.
Editorial Note 4: The lecture continues with bars to intestacy, below.
3. Rules Barring a Party from Receiving Their Share
a. Slayer Rule (i.e., homicide rule)
If a person is responsible for the ____________________ of the decedent, that person cannot be an heir.
Applies when a preponderance of the evidence shows that an heir has feloniously and intentionally caused the decedent’s death.
Editorial Note 5: To clarify, the standard of evidence is a preponderance of the evidence under Michigan’s Slayer Statute.
This standard is less than beyond a reasonable doubt; a person can be acquitted in criminal court and still be barred from intestacy under the Slayer Statute.
b. Disclaimers
To disclaim an inheritance, the heir must deliver a signed writing describing the disclaimed interest to the proper party (usually the personal representative).
Must be submitted before the heir takes any actions as an owner (e.g., renting out an inherited house)
4. Advancements
o At common law, if a parent gave a gift to a child during their lifetime, it was presumed to be an advance against the child’s eventual inheritance; the amount of the lifetime gift is deducted from the child’s share.
o Michigan—A lifetime gift is not presumed to be an advancement unless the gift is accompanied by a writing either:
Signed by the heir acknowledging the advancement; or Signed by the donor indicating the gift is an advancement.
CHAPTER 2: COMPONENTS OF A WILL
A. Two Main Issues Regarding Wills
• Will ____________________ (i.e., whether the will can be enforced by the court); and • Will construction (i.e., how to interpret the language of the will)
Note 3: There is also a preliminary issue as to which documents are part of the will. That is the subject of this chapter.
The documents that comprise the will include all the documents present when the testator executed the will that the testator _________________________ to be part of the will.
Example 5: A page was unintentionally set aside or there was a problem with stapling the pages together
C. Incorporation by Reference
• A testator may want to refer to another document that is not present at execution and is not part of the will.
Example 6: A testator’s will includes the following provision: “I leave my estate as I have set forth in a letter previously written to my brother, John.”
• The testator ______________ reference another document and the content _____________ be incorporated into the will if:
o The document was in __________________________ on the day the will was executed; and o The document is _______________________ with sufficient detail to know which document
is intended.
Example 7: From the previous example, it is unlikely that the testator only ever wrote one letter to her brother. If there is more than one document that the description could apply to, the will needs additional details to know which letter the testator intended to be incorporated.
1. List of Tangible Personal Property
o List that may or may not be in existence when the will was executed
Example 8: I want my niece to have the cobalt blue glass; I want my granddaughter to have my best china
o MI authorizes a separate writing to dispose of certain tangible ________________________ property.
o Separate writing that is not part of will, but the will may refer to it o May be executed ____________________ or ____________________ the will is executed o The document must:
Describe the items and the devisees in a way the court can understand; and Either be in the testator’s handwriting or signed by the testator at the end
Editorial Note 6: The list need not be dated.
o “Tangible personal property” only; may not dispose of ____________________ property, cash, money, or intangible property (e.g., securities)
• A codicil is a ______________________________ instrument that amends a prior-executed will. • Allows testator to change part of a prior will and keep the rest
Example 9: Testator has executed a will that gives his car to Harry. Now, he would like to give the car to Donna instead, but keep the rest of the will. Testator may execute a codicil making this change, and providing that the will remains the same in all other respects.
• A codicil republishes the will, changing its legal date of execution
E. References to Act or Events
• A bequest can be determined by reference to a future event
Example 10: A testator executes a will stating “I leave my property to my children,” but the testator does not have any children at the time of execution. The birth of the testator’s children will identify his beneficiaries.
• A will may reference an act or event that has some ________________________________ legal significance
Example 11: A testator with one child leaves, “my car to my children.” The testator may have another child who would divest the first child of complete ownership of the car. It is very unlikely that the testator had a second child in order to divest the first child. The choice to have another child has some motive or lifetime significance other than the testamentary gift.
• If the external event has no independent legal significance apart from how it affects the testamentary distribution, the reference has no effect.
Example 12: A testator executes a will stating “I leave John whatever I place in the top right drawer of my desk.” The court will not enforce this provision. Instead of just changing what he puts in that drawer if he changes his mind about what to leave John, the testator will need to alter his will.
F. Powers of Appointment
• Definition: a ____________________ of the decision and a grant to someone else of the power to decide how property will be distributed
Example 13: A testator executes a will leaving Harry the power to appoint who will receive property from his estate. Harry is the donee of a power of appointment and can appoint beneficiaries.
Editorial Note 7: Powers of appointment can be special or general. A special power of appointment limits the class of people in whose favor the holder can exercise the power, and the holder is not included in that class. A
general power of appointment allows the holder to exercise the power in favor of anyone, including himself, his estate, or his creditors.
• Generally, must be exercised by an ____________________ reference to that power of appointment
Example 14: “I am hereby exercising the power of appointment that was granted to me in Testator’s will, dated September 1, 2019.
o Can also be exercised by implication, typically in a blanket statement in the holder’s own will
Example 15: “I intend to exercise all powers of appoint that I may hold.”
G. Probate Estate
• Includes any property under the jurisdiction of the probate court • Includes property the decedent owned ____________________ in his name alone at the time of
1. ____________________ influence 2. Fraud or ____________________ 3. Revocation
• Acceptable types of execution:
o Attested wills—signed by ________________________________________ o Holographic wills—handwritten will o Harmless error doctrine—clear and convincing evidence the decedent intended the
document to be his will
Exam Tip 2: Start with an attested will analysis, then a holographic will analysis, and then end with the harmless error analysis as a last resort.
o ____________________ by the testator, or at the testator’s direction and in testator’s conscious presence; and
o Signed by at least ______________ witnesses within a reasonable time of witnessing either:
The testator signing; or The testator ________________________________________ the will or his signature.
2. In Writing
o Must be in writing o No oral wills in MI
3. Signed by the Testator
o Any mark the testator makes intending it to be a ___________________________________ o Can also be signed by another if: (i) at the testator’s direction, and (ii) in the testator’s
conscious presence
Example 16: The testator has a physical disability or is too weak to sign the document themselves. The testator can direct another person to sign the will on his behalf.
o Conscious presence: _______________________ apprehendable by any of the senses
4. Must be Attested by Two Witnesses
o MI does not have a problem with ________________________ parties serving as witnesses.
Example 17: A testator executes a will leaving her property to her children, and calls her daughter to witness the will. The daughter, as a prospective beneficiary, is an interested party, but can still serve as witness to the will in Michigan.
o Contemporary presence not required o Each witness must sign the will within a __________________________________ time of
witnessing either: (i) the testator signing the will, or (ii) the testator acknowledging the signature or the will.
Example 18: Testator signs his will in his home (by himself). He then walks to his neighbor and says, "This is my signature. Would you please be a witness to it?" The neighbor then signs the document as a witness. Testator then goes to a second neighbor and asks her to be a second witness. The second neighbor signs the will as a witness. This is a valid execution as long as the witnesses sign the will within a reasonable amount of time.
C. Testator's Requirements for Valid Will Execution
1. Capacity
o To execute a will, a ____________________ capacity is required than is required to execute a ____________________
o Testators must:
1. Have the ability to know and understand the nature and extent of their _______________________;
2. Have the ability to know and understand the ______________________ provisions they are making in the will;
3. Actually know the identity of the natural objects of their bounty; and 4. Have the ability to know and understand the interrelationship among these
requirements.
o “Natural objects of bounty” refers to those people the court assumes the testator would want to benefit
Example 19: Parents, spouse, kids, other close relationships
2. Testamentary Intent
o Requires the testator to intend that this document be a ____________________ o Does not require intent that property pass in a particular way
D. Proving Will Validity
Example 20: A testator signs a will that is signed and witnessed by two witnesses. When the will is probated, these witnesses will be called to the stand to testify under oath as to what they witnessed and to validate the will.
1. Attestation Clause
o Reduces the difficulty of probating a will by allowing admission without witness testimony
Example 21: A testator signs a will that is signed and witnessed by two witnesses. The witnesses sign under an attestation clause, attesting as to what they have witnessed and as to the validity of the will. The witnesses no longer need to appear in court to probate the will.
o An attestation clause is prima facie evidence that will was properly executed; witnesses need not be called unless the will is contested.
2. Self-Proving Affidavit
o A properly executed will may be accompanied by a separate self-proving affidavit. o A self-proving affidavit, signed by the testator and witnesses, gives sworn testimony of all
events to which they may have to testify when the will is offered to probate. o Provides _________________________________ proof that the will was properly executed
o If you have a self-proving affidavit, there cannot be a challenge to the will on the basis of ________________________________________.
E. Holographic Wills
• Written (entirely or substantially) in the _________________________________ of the testator • Need not be witnessed; the testator’s handwriting is evidence of their intent that the document
serve as a will. • MI recognizes holographic wills.
Exam Tip 3: A handwritten will with witnesses should be admitted as an attested will. Only resort to a holographic will if the requirements for formal will execution are not met.
• To be admissible to probate as a holographic will:
o The signature and material provisions must be in the testator’s handwriting; and o The document must be ____________________.
F. Harmless Error
• If a document cannot be admitted as an attested or holographic will, it can still be admitted with ____________________________________________________________ evidence that the decedent wanted the document to be a ____________________.
Exam Tip 4: Do not come to a conclusion based on the harmless error doctrine on the exam until you have exhausted your analysis of the other methods of validating a will.
CHAPTER 4: REVOCATION; WILL CONTRACTS
A. Revocation of Wills
• A will may be revoked by:
o _________________________ act o Writing o Operation of ____________________ o Presumption
1. Revocation by Physical Act
o The statutes prescribe certain physical acts that can revoke a will. o Must have a statutorily prescribed ____________ coupled with revocatory ______________ o Prescribed acts include: burning, tearing, cancelling, obliterating, and destroying.
Cancelling usually involves a mark on the will itself
Usually done through a subsequent valid will with a revocation clause
Example 22: Testator’s newest will expressly states, “I hereby revoke all prior wills and codicils.” This expressly revokes all prior wills and codicils.
b. Implied
Execution of a subsequent will that disposes of _____________ of the estate in a way inconsistent with a prior will, the prior will is revoked by implication.
Example 23: Testator writes a will in January leaving the entire estate to A. Testator writes a second will in July leaving the entire estate to B. The first will is revoked by implication by the subsequent writing.
3. Revocation by Operation of Law
o Even if a valid will benefits someone, it is revoked in whole or in part by some legal act. o Divorce: If testator’s will leaves benefits to a spouse, and the spouses divorce, every
provision of the will that would have benefitted the ex-spouse is ______________________.
Example 24: A testator’s will leaves half the estate to his spouse and the residue to his children. If the spouses divorce, the bequest to the spouse is revoked and the estate will be distributed to the children as part of the residuary estate.
4. Revocation by Presumption
Example 25: Testator dies, and although the witnesses and beneficiaries know that a will was validly executed, the will cannot be found.
o If, at the time of the testator died, the testator had control of a lost will, the court presumes the will was _______________________ by _______________________ act.
This is a ________________________________________ presumption.
o If, at the time of the testator’s death, the will was not in the testator’s control, no presumption applies to the lost will, and it can be probated.
Probating lost wills—Must offer proof: (i) that the will was properly executed, and (ii) of the contents of the will.
Photocopies cannot be probated, but can use it to prove the ____________________ of a lost will
• Copies with proper formalities can also be used as evidence of proper execution of a lost will
o Duplicate original wills cannot all be valid wills.
Example 26: Testator writes and executes a will at 10:56am. Testator writes and executes a duplicate identical will at 10:58am. The first will has been revoked by implication.
o Revocation of any “duplicate original” revokes all of the duplicative wills.
Not true of ____________________; revoking a copy does not revoke the original
6. Revocation of Codicils
o If a will has accompanying codicils:
The revocation of the will revokes the accompanying codicils The revocation of a codicil does not revoke the will
o Sometimes a document is labeled as a “codicil” but it really rewrites the entire will; that may ____________________ the prior will by implication.
7. Incidental Writings on the Face of the Will
Example 27: Testator leaves some money to the state college. Later, Testator cancels this gift by drawing a line through it with a pen.
o A line drawn through a portion of the will may revoke that portion by physical act if the testator did it with revocatory intent.
o Notes in the margins or accidental marks do not meet these requirements because they lack revocatory intent.
B. Revival of Revoked Wills
Example 28: Testator had Will #1, which was revoked by subsequent instrument when Testator executed Will #2. Testator later tears up Will #2. Is Will #1 revived or does Testator have no will? Courts are divided.
• UPC and MI:
o The prior will is ___________________________ to remain revoked unless there is evidence that the testator wanted to ____________________ it.
o If the prior will was revoked by a codicil and the codicil is revoked, the will is presumed revived unless the testator did not intend to revive the revoked will provisions.
C. Will Contracts
1. Proof of Contract
Example 29: After the testator dies, someone might assert that they had a contract with the testator which entitles them to some portion of the testator’s estate, even though that provision is not in the will.
o Under the UPC and MI, proof of a contract related to a will can only come in three specific types of evidence:
1. A separate signed writing setting forth the terms of the contract; 2. The _____________ mentions a contract and there is extrinsic evidence of the terms; or 3. The will mentions a contract and contains all the ____________________ in the will.
o If the contract is proven, whoever was supposed to get the benefit of the contract has a breach of contract claim.
2. Mutual Wills
o Mutual wills mirror each other, but are separate instruments.
Example 30: A’s will leaves everything to B, and B’s will leaves everything to A. After one spouse dies, is the other spouse obligated to keep their own will the same? ____________________.
o The existence of mutual wills (by itself) is not enough to show that there was a ____________________ not to revoke them.
Example 31: Same facts as above, would changing the will be a breach of contract? The existence of a contract must be proved by one of the three types of evidence discussed above.
3. Joint Wills
o One document that ____________________ parties have executed and applies to ____________________ parties’ estates
o Requires double probate o The fact that two people have a joint will ____________________ sufficient to prove there
was a contract not to revoke those wills. o The existence of a contract must be proved by one of the three types of evidence discussed
above
CHAPTER 5: CHANGES AFTER WILL EXECUTION
A. Intervening Events that Affect the Will
1. Changes in ____________________ the testator intended to benefit
o The bequest may lapse if a beneficiary predeceased the testator.
2. Changes in the ____________________ of the testator’s estate
o Lapse can occur if a beneficiary dies ____________________ the testator. o Under common law, the property the beneficiary was to receive became part of the
____________________ estate. o Most states have enacted anti-lapse statutes to protect certain beneficiaries from lapse.
2. Anti-Lapse Statute in Michigan
o Anti-lapse statute applies to predeceased devisees who were:
A ________________________________________ of the testator; A lineal descendant of a grandparent of the testator; or A ________________________________________ of the testator
o The anti-lapse rule does not let the gift lapse; instead it creates a ______________________ gift in the surviving descendants of the predeceased devisee.
Example 32: Testator leaves $30,000 to his brother, A, who predeceases Testator. A is covered by the anti-lapse statute because he is a lineal descendant of Testator’s grandparent. If A has any surviving lineal descendants, they will take the $30,000 as a substitute gift.
o The anti-lapse statute does not include ____________________. o If the predeceased beneficiary had a will, ignore that will and use the anti-lapse statute to
determine the substitute taker.
C. Changes in the Testator’s Property
1. Ademption and Non-Ademption
o What happens when a specific gift is not in the estate when the testator dies?
Example 33: Testator leaves “my Rolls-Royce to A.” At Testator’s death, there is no Rolls-Royce because it was sold or destroyed.
o Common law ademption—if specific property is missing, the bequest is adeemed (i.e., beneficiary takes nothing).
o UPC and MI “Non-Ademption Statute”—the beneficiary of property that is no longer in the estate may have a right to the ____________________ of the bequest, unless the testator intended for ademption to apply.
2. Application to Specific Property
o Statute addresses issues with particular property, mostly concerning rights to an ____________________ stream
Example 34: A testator executes a will leaving a house to the beneficiary, then sells the house to the purchaser on credit. The testator is still receiving payments for the house when he dies. The beneficiary is entitled to that income stream instead of the house.
o Only applies to money not yet _______________________________________ by the estate
Example 35: Testator leaves his car to his son. However, before he dies, the car is destroyed, and the insurance company sends the testator a check. The testator receives the check and then dies. The son can claim the value of the car from the estate, but is not entitled to the payment from the insurance company itself because that income has already been received by the estate.
o Potential replacement property:
Any balance of the purchase price owing to the testator; Any amount of a condemnation award to the extent paid after the testator’s death; Any proceeds from fire or casualty insurance to the extent paid after the testator’s
death; Property acquired by foreclosure of a security interest in a specifically devised
obligation; and Property acquired as a replacement for specifically devised property
Editorial Note 8: The list of potential replacement property is discussed in more detail in the Outline, Section VI.B.4.
D. Specific Problems with Lapse
1. Class Gifts
o A class gift is a devise to a class. o A class is a ____________________ of people defined by a shared characteristic;
membership can increase or decrease.
Example 36: A gift to “my children” is a class gift.
o To apply anti-lapse, peek inside the class to the individual members. o If a predeceased class member is someone who would be covered by the anti-lapse statute,
the anti-lapse statute will apply. o If anti-lapse does not apply, the surviving members take the deceased member’s share.
Example 37: Testator executes a will leaving property to the members of a particular club. At Testator’s death, only three members were still alive. Unless any individual predeceased members are covered by anti-lapse, the three surviving members divide the class gift among themselves.
Example 38: Testator leaves “all the rest and remainder of my estate to my nieces and nephews.” This is a class gift of the residue of the estate. Because anti-lapse would apply to nieces and nephews, if they predecease the testator, their surviving lineal descendants take their shares.
E. Specific Problems with Ademption
1. Increase
o Applies to ____________________ and similar ____________________________________
Example 39: Testator owned 50 shares of Google stock. The company calls for a stock split and distributes an additional 50 shares to Testator. Testator’s will leaves “all my Google stock” to a particular person. Here, the beneficiary receives all 100 shares.
o If devised stocks increase due to actions on the part of the company, the devisee gets all of the increase as well as the original stocks.
Example 40: Same scenario, but Google was bought by Moogle, and Testator’s stock was exchanged for more stock in Moogle. The beneficiary will receive these shares because the increase occurred without any action on the part of Testator.
o Assets acquired by a plan of ________________________________________ are also included in the beneficiary’s bequest.
2. Exoneration of Debts
o Some devised assets may be subject to a debt (e.g., real property subject to a mortgage). o Michigan has a non-exoneration statute; the beneficiary of encumbered property takes the
property and the debt, unless they disclaim the entire bequest.
CHAPTER 6: STATUTORY LIMITATIONS ON THE DISPOSITION OF PROPERTY
A. In General
• Is the testator’s right to dispose of their estate unlimited? Generally, ____________________ • Except—Two categories of people are protected from disinheritance:
o ____________________; and o _________________________
B. Spouse’s Elective Share
• Under MI Law, a spouse has a right to:
1. Accept what is given under the ____________________; or
2. Elect _________________________ the will and take an elective share
Exam Tip 5: Be sure to differentiate between the elective share and the spousal intestate share. The intestate share only applies when there is no will, and the elective share applies when the spouse elects against a valid will.
• MI elective share: _________ of what their intestate share would have been, minus _________ the value of property the spouse received by any non-probate means, such as life insurance
Note 4: This is less than what the spouse would receive with no will at all!
Exam Tip 6: If the elective share is tested on the exam, you will first need to calculate the spousal intestate share to correctly calculate the elective share.
1. Widow's Dower Right
o MI has abolished this rule for decedents who died ____________________ April 6, 2017. o Widows of decedents who died before April 6, 2017, receive dower rights.
Editorial Note 9: Dower rights are discussed in more detail in the Wills Outline, Section VII.B.
2. Omitted Spouse
Example 41: Testator executed a will before marriage and then failed to amend the will to account for the spouse.
o Arises when the will was not designed to disinherit the spouse; rather, it seems the omission was inadvertent
o If the testator marries ____________________ validly executing a will, the omitted spouse has a right to claim an intestate share of the estate.
o Other gifts under the will are to be reduced to make room for this gift (i.e., abatement).
C. Omitted Children
• Children born ____________________ the execution of the will
Example 42: Testator has two children: A and B. Testator executes a will leaving his estate to A and B. Later, Testator’s child, C, is born. C is an omitted child.
• The omitted child’s share depends on how many other children the testator has:
o Testator had no children at the time the will was executed—omitted child has a right to an ________________________________________ share
o Testator had some children that are provided for in the will—omitted child receives a share proportional to what was left to the other children.
Example 43: Same as Example 30, but Testator leaves “$30,000 to my children, A and B.” The amount that was to be divided between A and B will now be divided three ways among A, B, and C. C will receive $10,000 instead of an intestate share.
• Remember that codicils _____________________________ the will as of the date of the codicil.
Example 44: Same as Example 30, but Testator executes a codicil after C is born. C is no longer an omitted child because the will has been republished, and C was born before the republication of the will.
Example 45: Same as Example 30, but Testator leaves “$10,000 to A and $20,000 to B.” Those bequests are still added together and divided by the number of children to determine what C receives, so C will receive $10,000. A’s and B’s shares will be reduced proportionally (see Abatement, discussed in Chapter 8).
D. Statutory Allowances
• These are applied ____________________ the omitted spouse, omitted child, or elective share calculations.
• The statutory allowances include:
o Homestead allowance o ____________________ allowance o Tangible _________________________ property allowance
1. Homestead Allowance
o Value is $____________________ (adjusted for inflation and cost of living) o Right belongs to the surviving ____________________, if there is one.
2. Family Allowance
o Meant to maintain the decedent’s family during the period of administration o Defined by statute as a ________________________________________ amount; may go to
court to request any amount o Statute also provides a right to up to $____________________ without court approval
3. Tangible Personal Property Exemption
o Allows surviving spouse to ____________________ various personal property items up to a value cap of $____________________ (adjusted for inflation)
o This right belongs to the surviving ____________________, if there is one.
4. No Surviving Spouse
o Homestead allowance—Belongs to testator’s ____________________ and ________________________________________ children
o Family allowance—Shared by ________________________ of the testator and children not of the testator if the testator was obliged to support or actually supported them
o Tangible personal property—Belongs to testator’s _________________________________
• Most grounds for will contests have developed under common law, not statutes. • If the proponent of the will makes a prima facie case that the will is valid, the will is admitted to
probate unless somebody ____________________.
B. Who May Contest a Will?
• Only _____________________________ parties may contest a will. • An “interested party” can be anyone who:
o Stands to take anything under the will; o Stands to receive property under a prior will; o Would take if there were ____________________ (i.e., heirs); or o Are ______________________ of the estate.
C. Traditional Grounds
There are six primary types of challenges in wills contests:
o Lack of mental capacity o Lack of requisite testamentary intent o Improper execution o Undue influence o Fraud or Duress o Revocation
D. Fraud or Duress
• Fraud or duress are rarely effectively applied in wills contests. • Fraud: A _______________________ misrepresentation made for the purpose of causing
reliance on which the testator actually relies, resulting in benefit to the defrauder • Two types of fraud:
o Fraud in the Inducement: Regarding facts that would induce the testator to change his will (or otherwise dispose of his property in a manner he would not otherwise intend).
Example 46: A defrauder tells the testator his son has died, hoping to inherit the son’s share of the estate. The testator executes a new will replacing his son with the defrauder.
o Fraud in the Execution: Fraud about the ______________________________ itself
Example 47: A defrauder gives the testator a drafted will and tells him that it is a memo that requires his signature. The testator, believing the defrauder, signs the document.
• As long as the testator had testamentary capacity, the court presumes they were not unduly influenced, unless it is shown by a party contesting the will.
1. Direct Proof Method
o “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, 251 N.W.2d 77, 78 (Mich. 1976).
Editorial Note 10: Although the professor suggests memorizing the above rule statement, you may also use an element-based structure for your analysis, which is included below. The test for undue influence under the direct proof method is discussed in the Wills Outline at Section VIII.C.
o In order to establish undue influence, the contestants must prove:
The existence and exertion of influence; The effect of the influence was to overpower the mind and will of the testator; and The product of influence was a will or provision of the will that the testator would not
have made but for the influence.
2. Confidential Relationship Presumptions
o If there is a confidential relationship, the court ____________________ there was undue influence, and the burden shifts to the proponent of the will to rebut the presumption.
o To trigger the presumption, must establish:
A ________________________________________ relationship; The alleged undue influencer (or someone close to them) benefited from the will; and The alleged undue influencer had __________________________________ to influence
the testator.
o Can challenge any of the three elements, but challenging the last two is almost impossible
Most cases come down to whether there was a confidential relationship
o What is a “confidential relationship?”
Some are per se confidential because they are per se ____________________________
Example 48: Lawyers, doctors, maybe religious figures
Gray area: nursing assistants and caretakers—depends on the facts The heart of a confidential relationship is that the alleged undue influencer has certain
______________________________ or ____________________ on which the testator ____________________ and the influencer uses in their discretion.
Example 49: I give you access to my checking account and a list of items to purchase. The list includes the brand of each item, where to purchase them, what substitutions are permitted, etc. Because you have no discretion in executing this task, this is not a confidential relationship under this rule.
Example 50: I hire someone to manage my finances, giving them access to my accounts and instructing them to pay my bills and manage my investments as they think I should. I am relying on their discretion and their knowledge and power to manage my finances. This is the type of confidential relationship that could trigger an undue influence presumption.
Exam Tip 7: Undue influence must meet the definition discussed above. Proof of a confidential relationship allows you to presume (rebuttably) that the definition has been met.
F. Revocation
Example 51: A proponent brings a will for probate and someone comes along with a later will, claiming that the first will was revoked by subsequent instrument.
• One way to contest a will is by bringing in a ____________________ will that revokes the contested will.
G. Mistake
• Ordinarily, mistake ____________________ grounds for invalidating or reforming a will. • UPC: allows reformation of wills for mistakes in some situations, not adopted in Michigan • Michigan: no statutory authority for a court to reform a will based on mistake
o Only limited objections can be raised based on mistakes
Example 52: Mistake in the inducement—testator believed someone had died and relied on that misinformation to draft a new will.
Exam Tip 8: The most common grounds for will contests, and the most commonly tested, are lack of testamentary capacity and undue influence.
Exam Tip 9: Do not try to analyze all the traditional grounds to contest a will, and do not analyze them at all unless someone has objected to the will. Instead, note that no objection has been made, and move on to other testable issues.
H. Extrinsic Evidence
• Michigan ____________________ extrinsic evidence in some circumstances. • Not admissible to ____________________ terms that are clearly stated in the will • Admissible to help define terms that are _______________________________ or to fill in blanks
Example 53: Testator leaves specific real property to a beneficiary, but the description of the land is so imprecise that it is unclear what property is in the bequest. Extrinsic evidence is admissible to identify the property.
• Admissible to show that the will is ____________________
I. No Contest Clauses
• Are _____________________________ in MI; also called in terrorem clauses
Example 54: “If any person contests the validity of this will, they forfeit their share under the will.”
• These clauses are generally enforced. • If the contestant ____________________ the challenge, the will is not admitted and neither is
the no-contest clause.
CHAPTER 8: PROBATE AND ADMINISTRATION
A. Jurisdiction and Venue
• Jurisdiction: the state in which the decedent was _________________________ at death • Venue: the ____________________ in which the decedent was domiciled at death • Real Property: always the jurisdiction in which the property is ____________________ (in rem
jurisdiction)
o If the testator was domiciled in MI, but owned property in another state, there must be an _________________________ probate in that other state.
B. Procedure
• There is no statutory ____________________ limit to apply for probate of a will. • Probate: Formal process of proving that a document is the testator’s will
o Under intestacy, process is called “administration” of the estate instead of “probating”
• Personal representative (PR) has the authority and responsibility to ____________________ the assets, marshal the assets, protect the assets, identify the proper recipients, make ______________________________, and report back to the court
• May be formal or informal; formal probate requires more court involvement • PR must be discharged from their fiduciary duties after probate ends
C. Personal Representatives
• Personal representatives are fiduciaries. • MI statute lists the order of priority for ___________________________ of the PR, starting with
Note 5: Priority for appointment of the PR goes in the following order:
i) The person nominated in the will;
ii) The decedent’s surviving spouse, if named as a beneficiary;
iii) Other devisees;
iv) The decedent’s surviving spouse, if not named in the will;
v) Other heirs; and
vi) After 42 days from the decedent’s death, the nominee of a creditor if the court finds the nominee suitable.
• After appointment (i.e., receiving letters testamentary or letters of administration), the PR has authority to take any action that the ____________________________ could have taken.
Example 55: Buy, sell, mortgage, rent, etc.
• PRs found liable for breach of fiduciary duty are subject to ________________________ liability.
D. Administration of the Estate
• The administration of an estate can be supervised or unsupervised. • Supervised—rare and burdensome; typically used when the court thinks there should be close
supervision of administration • Unsupervised—more common and is usually paired with _______________________ probate
E. Creditors’ Claims
1. Notice
o When a will is admitted to probate, the PR must give ____________________ to the decedent’s creditors.
o Must send personal notice (usually by mail) to known creditors
Example 56: There is a bill from Visa that the decedent had not paid yet. That is a known creditor entitled to notice.
o Also must ____________________ notice in the local legal periodical
2. Time Period
o There is a statutory time period during which creditors must submit their claims.
Note 6: Creditors receiving notice only by publication have 4 months to file claims. Known creditors receiving notice by mail have 1 month to file claims.
o Time period only applies to creditors who received proper notice.
F. Payment of Claims
1. Priorities for Payments—Claims are paid in a particular order defined by statute:
1. Costs and expenses of ________________________________________;
2. Reasonable ____________________ and burial expenses; 3. The statutory allowances:
a. ________________________________________ allowance b. Family allowance c. Exempt tangible personal property
4. Debts with priority under ____________________ law;
Example 57: Bankruptcy, Medicaid estate recovery
5. Medical expenses relating to the decedent’s ______________________________________; 6. Debts that have priority under ____________________ law;
Example 58: Michigan property taxes
7. All other claims (including omitted children and spousal shares)
Exam Tip 10: You may not need a full analysis of all claimants AND beneficiaries under the will. Focus on the parties and interests that actually appear in the fact pattern.
2. What if you run out of money?
o Claims are paid in order of priority, and if you run out of money, you run out of money. o If there is more than one claimant in a particular category, each of the claimant’s shares are
reduced pro rata. o If you run out of money for the beneficiaries, the devises begin to abate.
3. Abatement
a. Types of Devises
____________________ devise: A devise of a specific piece of property
Example 59: my car, my watch, my boat
General pecuniary devises: Gifts of money that do not specify the source
Example 60: $10,000 to A, $30,000 to B
____________________ devises: distribute the rest of the estate Demonstrative devise: hybrid between specific and general; gift of money that is to be
paid from a specified source
Example 61: $20,000 from my bank account
• Treated as a ____________________ devise to the extent it can be funded by specified source
• Treated as a ____________________ devise to the extent it cannot be funded by specified source
Example 62: $20,000 from my bank account, but the account only has $10,000. The beneficiary receives the first $10,000 with the same priority as a specific devise. If all specific devises are satisfied, the beneficiary may receive another $10,000 from other sources as a general devise.
b. Priority in Abatement
Specific devises (Highest priority)
• If a specific devise is no longer in the testator’s estate, the devisee is entitled to the value of that property
Demonstrative devises that can be funded by the specified source General devises and demonstrative devises that cannot be funded by the specified
source Residuary devises (Lowest priority)
c. Abatement Ratio
If there are not enough assets in a particular class, those gifts abate pro rata as a class:
• Add all of the intended gifts together • Add all of the remaining assets • The ratio is: assets in the estate/value of intended gifts • Reduce each gift by the ratio amount
Example 63: After satisfying creditor and specific devises, $50,000 remains in the estate. General devises provided in the will add up to $100,000. Here, each general devisee’s share will be abated by half.
