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Avoiding Will Contests

Anyone who goes to the trouble of having an attorney draft his or her Will quite naturally wants it to be honored by his or her heirs. In short, no Will contests! A lot of clients ask us how to prevent such mischief.

The primary drafting tool is, not surprisingly, a clause prohibiting heirs from contesting any provisions of the Will. This prohibition can also be imposed in Trusts. Such provisions are frequently referred to as “in terrorem” clauses because they are designed to dissuade (terrorize) heirs from contesting the Will.

Most no-contest clauses completely disinherit the unfaithful heir if and when he or she contests the Will. While that is not the only consequence which can be imposed for deviating from the estate plan, it is the most popular measure by far.

Complete disinheritance apparently strikes the authorities in Michigan as being unduly harsh. Current Michigan law provides that a no contest clause will not be enforced if the heir contesting the Will had “probable cause” for doing so.

This leads to the obvious question as to what is probable cause for these purposes. Full review of that topic is beyond the scope of this blog post. Suffice to say, there had better be sufficient facts or evidence that would justify a reasonable belief that the Will contest might be successful. Flimsy excuses or petulance about being “cut out” of the Estate simply will not do.   Probate Court judges are not eager to disinherit heirs, but they are also careful to respect the wishes of the Testator who signed the Will.

A No Will Contest clause is not for everyone, but it can serve useful purposes for planners who want additional assurance their wishes will be properly carried out. On the other side of the coin, an heir facing the prospect of disinheritance from a no contest clause must proceed with caution. In both cases, consultation with the lawyers at Lambert & Lambert PLC can sort out the challenges and pitfalls arising from these no contest clauses.

 

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