Darren Findling of The Probate Pro discusses the penalty or no contest clause for Will and Trust disputes.

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If you challenge my Will or Trust you get nothing! Hi, I'm Darren Findling of The Probate Pro and penalty clauses also known as no contest clauses or in the old days we used to call them in terrorem clauses are common in estate plans but are they allowed why would somebody want to add a provision in their estate plan that says that if you challenge the will or trust you get nothing well because it creates a disincentive for people to do so you provide that person with a gift and you say that if you challenge the will you lose that gift it's a pretty strong disincentive for people to act against the estate plan but are they legal are they enforceable the answer is generally yes Michigan has a statute 700.2518 that specifically addresses the penalty clauses for wills and there's also a corresponding similar statute for trust however there are limitations the limitations include that if the person had probable cause for challenging the estate plan then it's unenforceable the penalty Clause so imagine the scenario that you create a fraudulent will meaning it's done uh with a forgery or under duress but you give somebody a share could you simply say that you're going to forfeit your share if you challenge the legit legitimacy or the validity of the will well of course not that wouldn't be fair so this probable cause exception exists so it's enforceable unless there's probable cause to act but what about the actions of the personal representative or the trustee during the administration of the trust during the time they're serving following the death of the person who created the will or trust what about during that period of time can you challenge their actions let's say they're not acting appropriately of course the answer is yes you can challenge it without risk of the penalty clause being invoked so there is this aspect of probable cause as being the exception so that it would create unenforceability to this larger concept of no contest cause clauses however they are enforceable in Michigan and they're widely used we see them almost like boilerplate language in many uh estate plans that are created do you want to use one well maybe not you should really talk to your lawyer about whether it's an appropriate tool and whether it should be included in your estate plan I can tell you from practice that there are times people come into my office and they do want to challenge the will or they do want to challenge the trust the creation the formation of that document and those same people are provided a pretty sizable gift they have to think hard about whether they're willing to risk the gift that they're provided for the larger objective of challenging the entire estate plan these types of litigation issues are not simple and they're individualized so there's not one size fits all if you’ve got questions about probate related issues visit us at TheProbatePro.com or call us at 833 PROBATE..