Aging In Michigan - September 2020

Anatomy of a Will Contest

Legal Theories

The legal theories that might apply to a lawsuit contesting the validity of a will or trust are many, but almost always they include both “Lack of Capacity” and “Undue Influence.”

When a will or trust (or other legal document)  is challenged for lack of capacity, as the name suggests, the proofs must show that, at the moment the document was signed, the person signing it lacked the cognitive ability to reasonably understand the nature and effect of what they were doing.

Capacity cases often hinge on expert testimony, typically doctors who have reviewed the medical records and who then offer an opinion about the signer’s competence on the critical date.  But medical opinions aren’t required, and often the testimony of lay witnesses, neighbors for instance, who can relate stories about the behavior of the  signer at times contemporaneous with the event at issue, are just as compelling.

Undue Influence asserts that even if the person who signed the document could have understood what they were doing, the only reason they did so was because someone was able to assert control over them to the extent that they were unable to resist the pressure and acted in a manner designed to please this other person, and not on their own accord.

Michigan law distinguishes between “duress” which is physical coercion (the threat of violence, for instance), and undue influence which is coercion arising in the context of a relationship, such as when someone a vulnerable adult trusts or depends upon exploits that trust for their own benefit.

In a case in which forgery is alleged, the lawyers challenging the document would typically engage a handwriting expert to support the theory that the signature on the document  is not  that of the person whose name appears.


Once a lawsuit is started by the filing of a complaint or petition, the lawyers then engage in the process of collecting evidence, called discovery.  In this process, lawyers issue subpoenas, conduct depositions and use other discovery tools to determine what the facts are and what they can expect a trial to look like.

Through the discovery phase, lawyers begin to shape their case, and assess the relative strengths and weaknesses of each cause of action.


During the discovery phase, issues might arise that the lawyers want the judge to rule on.  These  issues are usually raised by the filing of “motions.”  A motion might be filed, for instance, because one side believes the other side is engaging in inappropriate discovery and wants the judge to tell them to stop.

A “dispositive motion” is a motion that seeks to have the judge rule that one party will prevail on some or all of the case without having a trial.  Lawyers often file such motions, and many cases are resolved that way.  Understandably, a judge will typically not rule on a dispositive motion until after discovery has been completed.


Almost all cases settle short of trial.  The reason for this is risk and cost.  Through the course of discovery, each side becomes educated on the strengths of the other party’s case, and the weaknesses in their own.  As a result, each side can calculate what the cost of trial court would be, and taking into account the possibility that they could lose, can figure out how much money they would take to settle the matter, and avoid the risk of losing at trial. Roughly speaking the value of the case is the chance you will win multiplied by the best possible outcome.. So, for instance, if a complete win would net your client $1,000,000, and there’s a 50% chance you will lose, the case is worth (and should settle at) around $500,000.

Cases that don’t settle, go to trial.

Is it Worth It?

Lawsuits and lawyers are expensive, and litigation is a financial decision. It only ever makes sense to litigate if you have a good chance of coming out ahead on the deal.  What’s more, while the lawyers might be enjoying themselves, the clients rarely do.  Litigation is stressful, time consuming, and tears families apart.  Anyone who considers engaging in a will or trust contest needs to decide whether the emotional and financial costs of litigation, and the time commitment involved, will be justified by the likely outcome.


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