The reason why we have wills and trusts is to effectuate a person’s wishes for how their estate will be distributed. Yet it is no surprise that interested parties with ill intent might want to find a way to get a better share of the decedent’s estate than they otherwise would have received. One of the ways that bad actors do this is by forging a will or trust in the name of the decedent or witness.
What Makes a Valid Will or Trust?
In Michigan, to have a valid will it must be:
- In writing (handwritten or typed)
- Signed by the testator. If the testator is unable to sign, the testator can direct someone else to sign for him or her, but it must be in the testator’s presence.
- Signed by two witnesses within a reasonable time of witnessing the testator sign and witnessing each other sign. In Michigan, although it is recommended the witnesses have no stake in the testator’s estate, or “disinterested,” but it is not required.
A holographic will, one that is handwritten, can still be valid even if it does not meet all the requirements above as long as it is dated, signed by the testator, and contains material portions in the testator’s handwriting.
In Michigan, to find a trust exists, there are general elements that need to be met:
- Grantor with the intention to create the trust
- Trust property: the trust may be parol, orally communicated, as long as the trust property is not real estate, in which case it must be in writing and signed by the grantor
- Trustee who receives legal title to the trust property and distributes and manages it according to the terms of the trust
- Beneficiary with equitable title who will receive income or principle, and for whose benefit the trust is held
For wills and trusts the general idea is the same — forgery shows that the testator or grantor’s intention is not truly being expressed, but instead the intentions of another, the forger. For wills, a forged signature directly violates an essential element of a valid will, the signature of the testator. For trusts, a forged signature shows lack of intention on the part of the grantor, which is required.
The two required witnesses are an attempt to make sure the will gets validly signed, but sometimes forgeries can happen despite this. For example, all signatures could be forged, the witnesses could have bad intentions, or someone could tamper with the will after it is made. A forged signatures invalidates all or part of a will. A will must be brought that clearly expresses the intent of the testator, and a court will not enforce any part or whole of a will that depends on a forged signature calling into question true intent and statutory validity.
Forgeries Can Happen in Other Areas of Probate
It is important to note that forgeries can happen for changes to bank accounts, beneficiary designations, granting power of attorney, and other similar situations. For all of these situations, if the result of a change or giving power or property is a forgery, then it will not hold up in court.
How Do You Prove Forgery?
So how does a court go about figuring out whether or not a document is forged? Courts realize they are not handwriting experts and cannot be expected to know when a signature is authentic or not. Probate litigation attorneys will bring in handwriting experts, with each side’s expert squaring off about the validity of the signature. The expert will compare the signatures and find how they are or are not similar to the deceased individual’s true signature and writing, including looking at amount of pressure, angle and length of strokes, points of lift, and direction of strokes. They will look for irregularities or alterations in the document.
BRMM’s probate litigation team takes pride in giving their clients the experienced, compassionate care they each deserve. We fight to make sure your family members have their wishes properly carried out, in cases of forgery and all other types of will and trust contests. In these types of probate disputes, having experienced lawyers can make the difference between winning and losing.
We welcome you to contact our Troy, Michigan, probate attorneys for a consultation about a probate matter. Click below to learn more about Michigan probate law and probate litigation: