What is a No-Contest Clause in a Will?

Last Will and TestamentWill contests happen much more frequently in the movies than in real life, but when they do happen, they can cause great hostility and turmoil in a family, not to mention the expense of probate litigation that diminishes the assets in the estate. What is a “no-contest” clause in a last will and testament, how can it help prevent needless probate litigation, and what happens if someone tries to challenge a will with a no-contest clause?

A no-contest clause is sometimes referred to as a “penalty clause” or an “in terrorem” clause. Its purpose, quite literally, is to place people in fear of what would happen to their inheritance should they challenge a will.  A no-contest clause states that should a beneficiary of the will make a legal challenge to the will or any of its provisions, he or she would forfeit the right to inherit anything under the will.

A no-contest clause makes a will contest a risky proposition: if the beneficiary successfully challenges the will (and this clause), they might be entitled to claim much more than they would be otherwise; if their challenge is unsuccessful, they receive nothing at all. Faced with this choice, many people choose not to risk a will contest, and the penalty clause fulfills its intended purpose.

Of course, in order to make an heir consider that a will contest isn’t worth the risk, the maker of the will (the testator) must be willing to leave them something worthwhile; otherwise, they have no incentive not to challenge the will, because there is nothing to lose.

Is a No-Contest Clause Enforceable in Michigan?

A no-contest clause is valid in Michigan, provided it is properly executed. No-contest clauses are governed by Michigan Compiled Laws (MCL) 700.2518, which states “A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.” MCL 700.3905 further provides, “…a provision in a will purporting to penalize an interested person for contesting the will or instituting another proceeding relating to the estate shall not be given effect if probable cause exists for instituting a proceeding contesting the will or another proceeding relating to the estate.”

Both of these statutes make clear that if there is probable cause for an interested person, like an heir, to challenge a will or a provision in a will, the penalty clause cannot be enforced. What constitutes “probable cause?” Certainly, not mere discontent on the part of a beneficiary with the amount or type of property they were left.  In short, “It’s not fair!” does not constitute probable cause to challenge a will. Unfortunately for heirs, testators are under no legal obligation to be fair. Likewise, a disgruntled heir just looking to make trouble will quickly find him or herself shut out.

However, there are valid reasons to challenge a will in Michigan. These include undue influence on the part of someone trying to persuade the testator to make or change a will; lack of capacity to make a will, such that the testator did not adequately understand what he or she was doing; the will did not meet legal requirements (e.g., it was unsigned; or the will was induced by fraud of some sort.

What to Do if a Will is Challenged

If you are the personal representative of a Michigan estate and learn that the will you are attempting to probate is likely to be challenged, you may be tempted to try to deal with the problem yourself, particularly if the challenger is a family member. This is a bad idea. It is more likely that tempers will become inflamed than that issues will be resolved, and you may be accused of misconduct in your role as personal representative.

Instead, refer the matter immediately to the probate attorney assisting you with the estate. He or she will help you evaluate the likelihood that the challenge will be successful and will prepare the most efficient and effective response to any challenge that should arise. If there is a valid penalty clause, your attorney will ensure that  it will shut down any will contest before it gains traction.

If you are a beneficiary under a will that contains a penalty or no-contest clause and believe the will should be challenged, consult with an experienced Michigan probate attorney before undertaking a challenge, to make sure that you have a reasonable likelihood of success before risking your inheritance.

If you have further questions about no-contest clauses in Michigan, we invite you to contact our law office for a consultation.

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