Litigating Mental Capacity
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Chapter 8: Litigating Mental Capacity
Laura E. Morris, Warner Norcross + Judd LLP

Relevant Time Frame
Capacity Standards
Analyzing Mental Incapacity
Obtaining Testator’s Medical Information
Obtaining the Drafting Attorney’s File
Effect of Successful Challenge
Witness Testimony
Commonly Pleaded Companion Claims
Court-Approved Estate Plan During Testator’s Lifetime

I.   Introduction

A. Mental Capacity Challenges on the Rise

§8.1   As the Baby-Boomer generation ages, bringing with it a corresponding hike in the number of dementia cases, probate litigation and mental incapacity claims in particular will be on the rise in the coming years. The Alzheimer’s Association estimates that one in three seniors die with Alzheimer’s disease or another disease causing dementia.

It is a rare case in which one fact or one witness will make or break a mental incapacity claim. Pursuing a mental incapacity claim involves investigating and building a constellation of facts to persuade the fact-finder that the testator lacked mental capacity. Conversely, defending against a mental incapacity claim involves an investigation designed to uncover facts that indicate the testator had sufficient capacity at the time of the challenged transaction.

This chapter provides the basic outline for what you need to know before pursuing or defending against a mental incapacity claim on a probate matter (e.g., estate contest, trust contest, nonprobate asset contest, real estate transfer contest). For consistency’s sake, the term testator is used throughout to denote the person executing the questioned document, regardless of the transaction type or gender.

B. Mediation

§8.2   Mental incapacity disputes are well-suited for facilitative mediation: family members are typically involved, the cases are emotional in nature, and the cases tend to be expensive to litigate because of the factual investigation required to pursue or defend the case. A probate court can also order the parties to mediate. MCR 5.143(A).

II.   Procedural Considerations

A. Presumption of Capacity

§8.3   Mental capacity is presumed; the burden is on the contestant to prove a lack of capacity. MCL 700.3407(1)(b); In re Wawrzyniak’s Estate, 297 Mich 520, 522, 298 NW 118 (1941); see also In re Johnson’s Estate, 308 Mich 366, 369–370, 13 NW2d 852 (1944); Watts v Polaczyk, 242 Mich App 600, 604, 619 NW2d 714 (2000). If the contestant produces sufficient evidence to rebut the presumption of capacity, the proponent must produce evidence supporting the challenged transaction. In re Thayer’s Estate, 309 Mich 473, 478, 15 NW2d 712 (1944).

B. Burden of Proof

§8.4   The contestant must prove a lack of capacity by a preponderance of the evidence. In re Hallitt’s Estate, 324 Mich 654, 658, 37 NW2d 662 (1949). “[P]reponderance of evidence” means “such evidence as, when weighed with that which is offered to oppose it, has more convincing power in the minds of the jury. It is not a technical term at all, but means simply that evidence which outweighs that which is offered to oppose it.” Strand v Chicago & WM Ry Co, 67 Mich 380, 385–386, 34 NW 712 (1887).

C. Jury Trial

§8.5   A jury trial can be demanded for a mental incapacity claim. In re Paquin’s Estate, 328 Mich 293, 303, 43 NW2d 858 (1950).

Note that a demand for a jury trial must be filed as a separate document. MCR 2.508(B)(1). See SCAO form MC 22, Jury Demand.

D. Statute of Limitations

§8.6   The statute of limitations for a challenge to a will or codicil on mental incapacity grounds begins to run when the will is probated and the appeal period has expired. In re Estate of Rood, 16 Mich App 689, 168 NW2d 643 (1969). An action to challenge a testamentary trust has the same limitations period as that for a challenge to the will that creates the trust.

The statute of limitations for a challenge to an inter vivos trust agreement or trust amendment on mental incapacity grounds is the earlier of two years after the settlor’s death or six months after the trustee informed the contestant of the trust and provided other statutorily required information as set forth in MCL 700.7604:

(1) A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor’s death within the earlier of the following:

(a) Two years after the settlor’s death.

(b) Six months after the trustee sent the person a notice informing the person of all of the following:

(i) The trust’s existence.

(ii) The date of the trust instrument.

(iii) The date of any amendments known to the trustee.

(iv) A copy of relevant portions of the terms of the trust that describe or affect the person’s interest in the trust, if any.

(v) The settlor’s name.

(vi) The trustee’s name and address.

(vii) The time allowed for commencing a proceeding.