Testamentary capacity; In re Mardigian Estate; MCL 700.2501(2); Burden of proof; 700.3407(1)(c); Whether decedent’s reference to his daughter by a prior married name in the will reflected a lack of capacity; Undue influence; In re Langlois’ Estate; In re Fay’s Estate

The court affirmed the probate court order dismissing appellant’s petition to set aside the decedent’s 2018 will and admit his 2003 will and to set aside certain ladybird deeds, for failure to create a genuine issue of material fact. The question before the court was “not the likelihood of appellee prevailing on the substance of the dispute, but whether appellant has offered sufficient evidence to avoid summary disposition.” As to her “brief quotation from a medical record, that record was created 12 weeks before the decedent executed the will. And it merely references an assessment of the decedent while in the hospital.” Not only did the quoted passage “fail to establish whether the decedent had testamentary capacity at the time that he was in the hospital, it certainly does not establish whether, even if he lacked capacity at that time, he still lacked capacity 12 weeks later.” Appellant overlooked “an important principle, namely, that there is no rule that capacity once lost is lost forever. That is why the court must always look to the testator’s capacity at the time the will is executed, not whether there was a lack of capacity at some other time.” Moreover, she did “not point to any evidence to suggest that the hospital’s evaluation of decedent’s competency during his hospitalization is relevant to any of the statutory factors for determining capacity to execute a will. That is, without more, the mere conclusion in the hospital report that decedent was incompetent would provide limited assistance to determining whether decedent lacked capacity to execute a will while in the hospital at that time, much less 12 weeks later.” As for the information provided by appellant’s friend, Y, it was equally unhelpful. It merely provided Y’s “lay observation and opinion of decedent’s condition while in the hospital.” It was of no assistance in judging his capacity 12 weeks later. While the use of a prior married name that appellant had not used in 12 years “may reflect some confusion by decedent,” it nonetheless reflected that he knew “she was his daughter. That is, he knew that she was a natural object of his bounty and the will reflects his decision to disinherit her.”