Wills Flashcards
Witnesses at Common Law and EPIC
Michigan requires two witnesses for a valid will.
Under common law, a devisee could be a witness to the Will without making it invalid, but it would make any gifts to them in the will void.
Under EPIC “signing of a will by an interested witness does not invalidate the will or any provision of it.”
Permitted Spouse
“pretermitted spouse”, i.e., a surviving spouse who married the testator after the will was executed, is entitled to receive an intestate share of a specified portion of the state. The surviving spouse’s share is calculated by deducting that which is granted to a child of the decedent, so long as the child is not also the child of the surviving spouse.
Omitted Spouse Options
Spouse who was omitted from the will has three options.
(1) abide by the will (2) take her elective share or (3) Dower right
- Elective Share: Intestate share MINUS all other property spouse received from testator from outside sources (gifts, insurance, etc.).
- Dower Right: Gives a widow a life estate in 1/3 of all real property that was owned by the husband at his death or conveyed during his life without her approval.
Termination or modification by consent
A noncharitable irrevocable trust may be modified or terminated:
i) By the court upon the petition and consent of the trustee and the qualified trust beneficiaries, if the court concludes that:
a) Modification or termination of the trust is consistent with the material purposes of the trust; or
b) Continuance of the trust is not necessary to achieve the trust’s material purpose;
ii) Upon the consent of the qualified trust beneficiaries and a trust protector, who under the terms of the trust may grant, veto, or withhold approval of the trust termination or modification; or
iii) By a trustee or trust protector who, under the terms of the trust, have the power to direct the trust termination or modification.
Mich. Comp. Laws § 700.7411(1).
The decision in Hein v. Hein, 543 N.W.2d 19 (Mich. Ct. App. 1995), which permits settlors and beneficiaries to agree to termination of a trust in the absence of trustee consent, but with court approval, is still good law.
Trust - Doctrine of Election (Estoppel by Acceptance)
Under the doctrine of election, a beneficiary who elects to accept the benefits of a trust is thereafter barred from challenging the validity of the trust, including claims of insufficient capacity or undue influence.
However, a recent amendment to the Michigan Trust Code provides that a trust is void to the extent its creation was induced by fraud, duress, or undue influence.
Holographic Wills
Is a will that does not meet all the requirements of a formal Will.
Elements of a proper holographic will:
- Material portions of will be in the testator’s handwriting.
- Signed and dated by the testator
- No witnesses are required.
Surviving Spouse Rules
Surviving spouse’s share of the estate is based on the descendant’s surviving issue and parents.
If descendant has:
- No living issue or parents
- – Spouse takes entire estate - At least one surviving issue is of also of surviving spouse
- – Spouse takes first $150K
- – Plus 1/2 of intestate estate (residue)
- – Balance of estate goes to issues - None of the surviving issues belong to surviving spouse
- – Spouse takes first $100K
- – Plus 1/2 of intestate estate (residue)
- – Balance of estate goes to issues - Only surviving parents
- – Spouse takes first $150K
- – Plus 3/4 of estate
- – Remaining 1/4 is divided between parents.
Undue Influence
A presumption of undue influence exists upon a showing of:
(1) A confidential or fiduciary relationship existed between the grantor and grantee,
(2) the grantee somehow benefits from transaction, and
(3) the grantee had an opportunity to influence the grantor’s decision through
(4) threats, misrepresentation, flattery, fraud, or physical or moral coercion sufficient to destroy grantor’s free will.
If all elements are met, the presumption kicks in and the bene must provide evidence to rebut it.
Incorporation by Reference
The doctrine of incorporation by reference allows the testator include extrinsic documents into will when:
(1) The document is in existences when the will is executed; and
(2) The document is identified in the will with sufficient particularity to know which document is intended.
Powers of Appointment
- A right to determine where the property should go.
- Can be inter vivos power or testamentary power.
- Can be General power allows donee the power to appoint anyone to take the property. Usually exist when
the power allows donee to appoint property to self, estate, creditors of estate or donee. - Special power (limited power) that cannot go to the listed parties in General Power.
Three Common Will Challenges
(i) improper execution, (ii)lack of testamentary capacity, (iii) undue influence,
