M Civ JI 175.02 Omission of Child or Issue of Deceased Child in Will As a Result of Mistake or Accident

Caution: The instructions in this chapter should be used only for estates of decedents dying before April 1, 2000, the effective date of the Estates and Protected Individuals Code (EPIC). MCL 700.8101(1), (2)(a). See the instructions in chapter 178 for estates of decedents dying on or after April 1, 2000.

The law provides that if a decedent fails to provide in [ his / her ] will for any of [ his / her ] [ children / [ *other issue ] ], and if it appears that the omission was not intentional, but was made as a result of a mistake or accident, the [ child / [ *other issue ] ] is entitled to the same share of the decedent’s estate that [ he / she ] would have received if the decedent died without a will.

The petitioner has the burden of proving that the omission of [ name of child / *name of other issue ] from the will of [ name of decedent ] was not intentional, but was as a result of a mistake or accident.

You must determine whether the omission was intentional or whether it was made as a result of a mistake or accident. In making this determination, you may consider the provisions of the will and all of the surrounding circumstances.

Note on Use

Caution: This instruction should be used only for estates of decedents dying before April 1, 2000, the effective date of the Estates and Protected Individuals Code (EPIC). MCL 700.8101(1), (2)(a). See the instructions in chapter 178 for estates of decedents dying on or after April 1, 2000.

*When this instruction is used, if the omitted person is the issue of a deceased child, the appropriate relationship (i.e., grandchild, great-grandchild) should be inserted.

Comment

See MCL 700.127(2).

See In Re Estate of Stebbins, 94 Mich 304; 54 NW 159 (1892); Bachinski v Bachinski’s Estate, 152 Mich 693; 116 NW 556 (1908). O’Neall v Her, 254 Mich 631; 236 NW 890 (1931); In re Potts’ Estate, 304 Mich 47; 7 NW2d 217 (1942); and In re Karch’s Estate, 311 Mich 158; 18 NW2d 410 (1945).

History

M Civ JI 175.02 was added February 1986. ​