Can an Estranged Relative Contest My Estate?

There are many reasons to create a will or estate plan: to provide for your family; to have peace of mind regarding the future; and to ensure that your wishes regarding your property will be carried out when you are no longer here. Usually, people want their assets to go to their closest family members—their spouse and children. But sadly, it’s not uncommon for family members to become estranged from one another. Sometimes when that happens, the person making a will (the testator) decides to disinherit the estranged relative.

Can estranged family members contest a will? The short answer is yes, and challenging a will in Michigan may be the only way for a disinherited child to claim against the estate. Let’s talk about why, and what you can do to protect your estate from will contests.

Can You Disinherit a Child in Michigan?

Until recently, you could disinherit a surviving spouse or child in your will, but you couldn’t keep them from getting at least part of your estate. That was thanks to a measure in Michigan law known as the “exempt property allowance.” In a nutshell, this measure allows a spouse or child (even an adult child) to claim a portion of a deceased person’s personal property or, if none, other property or cash equivalent, even if the decedent left them out of their will.

A 2015 Michigan court case held that even if a parent explicitly disinherited a child in their will, the child could still claim against the estate using the exempt property allowance. However, the Michigan legislature was unwilling to allow an estranged child to do an end run around a parent’s explicitly-stated intentions. Accordingly, they amended the exempt property allowance statute so that an estranged child can be excluded from claiming even the exempt property statutory allowance.

Now, a parent can ensure their child will inherit absolutely nothing from them if they specifically state in their will that the child:

• Is to inherit nothing from the estate, OR
• Is to inherit $10.00 or less from the estate, OR
• Is not to receive exempt property of the estate.

Can you disinherit a stepchild in Michigan? Yes, but it may be unnecessary because a stepchild has no legal right to inherit from a stepparent, unless the stepparent has legally adopted them. However, so there is no ambiguity, it may be wise to to specifically exclude them nonetheless.

Challenging a Will in Michigan

If a testator has effectively disinherited an estranged child in a will, the only way for the child to get a share of the estate is to successfully challenge the will. In Michigan, you can’t challenge a will just because you don’t like what it says. There must be some legal reason to contest a will, such as:

• The testator had insufficient mental capacity to make a will
• The will was not properly executed according to the requirements of Michigan law
• The will was executed due to fraud
• The will was executed under duress or coercion
• The will was executed due to a mistake of fact (e.g. the testator mistakenly believed one child had been killed at war, so they created a new will leaving their estate to their other child)
• The will was executed due to undue influence
• There was a later valid will or codicil

Not just anyone can contest a will though. The person must have standing (the legal right to start a lawsuit). In order to have standing to initiate a will contest, you must have a potential injury to your legal rights. Generally, persons who would have inherited from a decedent under state law if there was no will have standing to contest a will. Those who would have inherited under a previous will may also have standing. For instance, if a testator at one time made a will leaving property to a stepchild, and then a will that left out the stepchild was, the stepchild would have standing to challenge that will.

Even an unsuccessful challenge to a will can still have a devastating effect on a family. Will contests are costly and contentious, often causing permanent rifts between family members. Therefore, whenever possible, it’s best to try to “challenge-proof” your will.

How to Prevent an Estranged Relative From Contesting Your Will

The best way to prevent an estranged relative from challenging the validity of a will is to be aware of the requirements for making a will in Michigan and to observe them carefully. Have your will drawn up by an experienced Michigan estate planning attorney. Consider seeing your doctor shortly before making your will so that he or she can establish, if needed, that you were of sound mind when you made the will.

Do not have anyone who will inherit from you present in the room when you make or sign the will, to avoid claims of undue influence or coercion. In fact, if possible, drive yourself to the appointment with your attorney, or have a disinterested party drive you. Make sure your intended personal representative knows where the most recent copy of your will is, and destroy all previous copies.

Another step you can take to prevent a relative from challenging your will is to include an in terrorem clause (also known as a no-contest clause). A no-contest clause discourages family members from challenging your will because if they do, they could lose whatever inheritance they were to receive under the will. If you intend to disinherit an estranged relative entirely, a no-contest clause will not discourage a will contest, because they have nothing to lose if they challenge the will. However, such a clause could be useful if you plan to leave a relative something that is less than they might expect or hope for.

If you have questions about how to keep an estranged relative from contesting your estate, contact Estate Planning & Elder Law Services to schedule a consultation.