When a famous person dies, there are often reports about nasty family battles over the person’s estate. Recent examples include the estates of Prince, Tom Clancy, Robin Williams, and Muhammad Ali. (You can read more about these celebrity estates and others on The Probate Lawyer Blog.)
Unfortunately, challenges to the provisions of a will aren’t limited to estates of famous or well-known people. Even in otherwise close families, problems can arise over last wishes and property distribution after a loved one passes away. When a dispute over distribution of an estate ends up in court, the legal action is described as “contesting” the will. There is a provision sometimes included in a will that is designed to avoid this kind of litigation. It is referred to as a “no-contest” clause. This type of clause is intended to deter beneficiaries from bringing court actions to invalidate a will.
A No Contest Clause Can Discourage a Beneficiary from Challenging the Will
A no-contest clause in a will specifically states that if a beneficiary in takes legal action in an attempt to invalidate the provisions of the will, that person will lose the right to receive anything at all from the estate. It effectively disinherits a beneficiary who contests the will. The goal of using the clause is to motivate beneficiaries to accept what they have been given in the will and forgo challenging it in court.
No-contest clauses only work as a deterrent for beneficiaries who receive meaningful gifts in the will. It will not affect a person who is completely disinherited in the will itself. It also will not discourage someone who only receives an insignificant or very small amount under the will, since they have little to lose by challenging it.
If you think there is a chance that your family may not be entirely happy with how your will distributes your property, you may want to consider the possibility of including a no-contest clause in your will. However, whether to include a no-contest clause in your will is just one of many issues that you should discuss with a knowledgeable professional before you finalize the plans for distributing your estate.
You should make the decision about a no-contest clause only after you fully consider your circumstances and understand all the implications of including one. Sometimes, the best approach is to omit a no-contest clause entirely or have one that is very narrowly written. Our experienced Michigan estate planning attorneys at Barron, Rosenberg, Mayoras & Mayoras will help you understand no-contest clauses and all the other issues that are part of planning how to care for your loved ones and distribute your property after your death.
Is a Terror Clause the Same as a No Contest Clause?
A no-contest clause in a will is also sometimes referred to as an “in terrorem clause” or “terror clause.” The Latin phrase literally means “into/about fear” and is used in law to refer to different types of deterrent actions. In the context of a will, the phrase is used to describe a no-contest clause, because the clause is meant to instill terror in a beneficiary and deter that person from challenging the will in court. Another term sometimes used for a no-contest clause in a will is “penalty clause.”
Is a No Contest Clause in a Will Valid in Michigan?
State laws vary greatly in how no-contest clauses in wills are treated. In Michigan, there are specific written laws that govern them, which are in Michigan Compiled Laws (MCL) 700.2518 and 700.3905. Those laws state that a no-contest clause is unenforceable if “probable cause exists for instituting a proceeding contesting the will or another proceeding relating to the estate.” The effect is to create an exception to enforcement of a no-contest clause. If there is no “probable cause” to support the legal challenge, the clause will be valid and enforceable.
The question of whether “probable cause” exists is a legal determination that is made by the court in which an action is filed. The specific facts and circumstances of each individual case are taken into account. Generally, there must be a substantial basis in the facts of the case for the will contest or other action in order for a court to find probable cause. Weak or flimsy excuses for challenging a will not be sufficient.
Reasons for Contesting the Provisions of a Will
In Michigan, there are four main reasons for challenging the provisions of a will:
- The person making the will did not have “sufficient mental capacity” to understand the full implications of signing the will.
- “Undue influence” was exerted over the person in getting them to sign the will, which means that someone forced or coerced the person into signing.
- The will does not meet the legal requirements of Michigan law.
- Fraud was used to get the person to create or sign the will.
Read a more detailed explanation from our attorneys of the reasons a Michigan will can be contested.
What Should I Do if Someone Challenges My Loved One’s Will?
Losing a loved one is always a sad, emotional, and very stressful time. It makes everything even more difficult if a family member decides they are not satisfied with the way your loved one provided for distributing the estate and contests the will in court. Litigation over a will or estate is expensive and time-consuming. The longer it goes on, the more strained family relationships can become.
The legal process that takes place after someone dies is referred to as “probate.” As soon as you have any reason to think that someone may go to court over your loved one’s estate, you should consult with an attorney knowledgeable about the probate process and probate litigation. Our probate litigation attorneys have substantial experience handling court actions involving estates and advising clients who are worried that their loved one’s estate may become the subject of a court challenge. We can help you understand what happens when someone contests a will and advise you what steps can be taken to protect the estate and preserve your loved one’s last wishes.
Schedule a Free Consultation with One of Our Michigan Attorneys
Our attorneys are ready to assist with your questions about wills, estate planning, and probate litigation. There is no charge for your initial consultation.
We are located in Troy, Michigan, and serve clients throughout the Tri County and Detroit area, as well as in other parts of Michigan. We also represent clients from other states with an interest in a Michigan estate.
Call us at (248) 213-9514 or complete our online form to set up your free consultation.