Take-Away: Just because an individual is diagnosed with dementia, or they have a court appointed conservator, does not automatically mean that the individual does not possess  testamentary capacity to sign either a valid Will or Trust.

Background: Testamentary capacity to sign a Will is described in the Estate and Protected Individuals Code (EPIC.) If over the age of 18, an individual is presumed to possess sufficient mental capacity i.e. testamentary capacity, if he or she: (i) possesses the ability to understand that he/she is providing for the disposition of their property; (ii) possesses the ability to know the nature and extent of their property; (iii) knows the natural objects of their bounty; and (iv) possesses the ability to understand in a reasonable manner the general nature and effect of their act in signing the Will. [MCL 700.2501.] Note that EPIC shifted away from the use of the old-timey sound mind to a sufficient mental capacity standard.

  • Revocable Trusts: This same testamentary capacity standard also applies to the execution of a revocable Trust or an amendment to a revocable Trust. [MCL 700.7601.]
  • Durable Powers: This standard of sufficient mental capacity also applies to the execution of durable powers of attorney and beneficiary designations according to the Reporter’s Commentary to the Michigan Trust Code.
  • Irrevocable Trusts: However, this statutory standard used with regard to testamentary capacity to execute a valid Will or a valid revocable Trust does not apply to irrevocable trusts; that standard still relies on the common law, and deals with the ability or mental capacity to enter into a contract or to transfer the property. Restatement (Third) of Trusts, Section 11.

Presumption of Testamentary Capacity: An individual is presumed to possess testamentary capacity to execute a Will. In re Mardigian, 312 Mich App.553 (2015). The evidentiary burden to challenge the validty of a Will on the grounds of lack of testamentary capacity is on the Will contestant. [MCL 700.3407(1)(C).] Testamentary capacity is judged at the time of the execution of the Will, not before or after, except as the condition, before or after, is competently related to the Will’s execution.

  • Old Age and Forgetfulness: Proof of old age, mental weakness or forgetfulness is insufficient proof to establish a lack of testamentary capacity. In re Sprenger’s Estate, 337 Mich 514 (1953).
  • Conservator Appointed: Just because an individual has a conservator appointed for them does not give a presumption against the validity of their Will, since the legal standard to appoint a conservator is not the same for the execution of a Will.  In re Verdries Estate,  Michigan Court of Appeals, No 306095 (July 31, 2012).
  • Addiction, Depression, Anxiety: None of these circumstances, standing alone, render an individual as incompetent to execute a Will, unless those conditions inhibit the individual’s ability to make or understand decisions at the time the purported Will is executed. In re Marion R. Craig Trust, Michigan Court of Appeals, No 307618 (April 23, 2013.)
  • Dementia: The Michigan Court of Appeals has had the opportunity twice in the last couple of years to deal with the testator’s diagnosis of dementia on the validity of a Will.

In re Estate of Rokosky, Michigan Court of Appeals, No 341693 (February 12, 2019) set aside the probate judge’s grant of summary disposition to admit a Will to probate, and remanded the case to the probate court since there was a question of fact on the testator’s testamentary capacity to execute her Will, thus prompting the need for a trial and evidence on that question.

After a trial in the probate court, the probate judge again found the testator’s Will to be valid, which precipitated the most recent appeal in In re Estate of Aurelia M. Rokosky, Michigan Court of Appeals, No 15-809781-DE (August 19, 2021.)

Facts: The decedent executed a Will in 1976. In that Will she named her daughter Joyce as the sole beneficiary of her estate. She named Joyce as Personal Representative. Apparently there was a ‘falling out’ between mother and daughter over the following years.

In January of 2011 the testator contacted her attorney and asked that he create a new Will by which she planned to leave everything to her friend, Kelly. She told both the attorney and her neighbor that she ‘wanted it all to go to Kelly.’

The Will was signed in the testator’s home with the attorney coming to the home. At the same time the Will was prepared and signed the testator also executed durable powers of attorney (financial and health) also naming Kelly as her agent and patient advocate.

Four days after the execution of the Will and durable powers, the testator was hospitalized for several days for acute dehydration, during which she did not know the month, the year, how long she had been in the hospital, or why she had been hospitalized.  The testator also manifested a loss of memory, claiming that she had been widowed although she had been divorced for over several decades. During this hospitalization the testator was diagnosed with either the ‘on-set of Alzheimer’s or dementia.’

At the probate court  trial, daughter Joyce had a physician testify, who looked at the testator’s medical records, and  give an expert opinion that the testator suffered from dementia and that she lacked testamentary capacity to execute the 2011 Will.

Months later, when she was out of the hospital but lived in a nursing home, the testator also executed a ‘ladybird’ deed, reserving to herself a life estate in her home, with the title passing to Kelly. [While not clear, it appears that Kelly instigated the ‘ladybird’ deed, which may be part of the reason the probate judge found the ‘ladybird’ deed to be invalid.]

When the testator died in August of 2013, her old 1976 Will was admitted to probate by Joyce. Later, Kelly filed a petition with the probate court to set aside the admission of the 1976 Will, admit the 2011 Will, and name Kelly as the Personal Representative of the estate.

Probate Court: In the first ‘trip’ to the Court of Appeals, Joyce appealed, as the probate judge had admitted the 2011 Will on a Motion for Summary Disposition. The Court of Appeals held that a trial was required since there was competing evidence that the testator lacked testamentary capacity at the time she had signed her 2011 Will.

  • Ladybird Deed: The probate judge had also found that the ‘ladybird’ deed was invalid because the testator’s medical records, dating from her hospitalization to the time the ‘ladybird’ deed was executed (September 29, 2011) showed that the testator lacked capacity to execute a ‘life estate deed.’ This determination was not appealed (but no mention of the standard applied with regard to the execution of the deed- a higher ‘business contract’ standard than testamentary capacity?)
  • 2011 Will: The  second decision made by the probate judge, after a full trial on remand from the Court of Appeals, was again to admit the 2011 Will to probate. [Apparently with the ‘invalid’ ‘ladybird’ deed, the testator’s home became a part of her probate estate, and thus it was governed by her Will, the trial being over whether to admit the 1976 Will or the 2011 Will.] The probate judge again found the 2011 Will to be valid despite expert medical opinion that she lacked testamentary capacity.

Court of Appeals: The Court held that the 2011 Will was valid and thus appropriately admitted to probate. In addressing the dementia diagnosis while the testator had been hospitalized shortly after executing the 2011 Will, the Court observed:

  • “A testator may be suffering physical ills and some degrees of mental disease and still execute a valid will.” In re Ferguson’s Estate, 239 Mich 616 (1927).”
  • “However, the fact that a testator has dementia is not dispositive as to whether she had testamentary capacity when she executed a will.” 
  • Despite the testator’s display of serious disorientation and memory issues while hospitalized for acute dehydration, the Court pointed to several actions taken by the testator prior to that hospitalization, e.g. she called her neighbor seven times the night that she signed the Will, just to tell him that her family was going to receive nothing from her estate. This was referenced by the Court as an example that the testator had a grasp on what she had done with her Will and that she had an understanding of the consequences of her 2011 Will. [Not mentioned was the implication of calling the neighbor 7 times to tell him the same thing! I wonder what the neighbor thought after the 7th call on the same night?] This is why those facts, meager though they were, ‘outweighed’ the expert medical opinion (based solely on a review of the medical records) that the testator lacked testamentary capacity to sign her 2011 Will.

Conclusion: The Rososky decisions are a helpful reminder that even when an individual has been diagnosed with dementia, or Alzheimer’s, facts may still be available to satisfy a relatively ‘low’ standard of testamentary capacity of the testator, or the settlor of a revocable trust. All too often we jump to the conclusion based on labels when such a diagnosis exists, or if a conservator has been appointed for an individual, that it is ‘too late’ to execute a new Will, Codicil, or amend an existing revocable Trust. That may not necessarily be the case as indicated by numerous court decisions that seem to rely heavily upon the presumption that an individual possesses testamentary capacity and which tend to ignore many surrounding facts and focus solely on the day the document was signed.