What is a “No-Contest” Clause in a Will?

A no-contest clause is a provision in a will that states that if a beneficiary challenges the will, they lose their inheritance under the will. In essence, the no-contest clause gives a beneficiary a choice: accept what you were given, or risk losing everything. A no-contest clause is also called an “in terrorem” clause—essentially because it is intended to place an heir in fear of losing their inheritance.

If you are considering making a will, or you are a beneficiary of a will that has a no-contest clause, you should understand what a no-contest clause in a will is, how it works, and what it could mean to you or your heirs.

How Does a No-Contest Clause in a Will Work?

A no-contest clause is generally fairly straightforward. It is usually a brief paragraph that states that if any beneficiary contests the validity of the will, they forfeit any bequest given them under the will, and their share will pass to someone else. Sometimes the alternative beneficiary is a specific person or persons named in the will, but often, the no-contest clause states that the contesting beneficiary’s share will pass as if they had predeceased the testator (the person making the will). 

The clause may also expressly state that the testator’s intent in including it is to ensure that their wishes will be honored and that there will not be disputes over their estate. Whether a no-contest clause in a will discourages a challenge to the will by making a beneficiary fear losing an inheritance, or simply by reminding them of the testator’s wishes, the testator’s ultimate goal is achieved. The estate will be administered without a challenge to the will’s validity. 

Of course, there is one caveat to all of this. A no-contest clause in a will functions as something of a “carrot and a stick.” The carrot is the inheritance a beneficiary will receive if they don’t make trouble. The stick is the potential loss of an inheritance if they do. If an heir is disinherited completely from a will, or given only a nominal bequest, they really have nothing to lose by challenging the will. So, in order for a no-contest clause to be effective, beneficiaries of the will must be left a bequest that is significant enough that they don’t want to risk losing it.  

Who Should Consider Having a No-Contest Clause in Their Will?

Anyone making a will can choose to include a no-contest clause, but these provisions are especially useful in certain situations, such as: 

• Unequal distribution of the estate. Heirs are less likely to contest a will as long as they are getting the same amount as other beneficiaries. If a testator is leaving one or some beneficiaries more than others, a no-contest clause can discourage a will challenge. (It may also be helpful to be explicit about the reason for an unequal distribution of the estate, such as that some beneficiaries helped to care for the testator in a time of need.)
• Complicated family dynamics. Will contests are more likely in situations where there are complex or strained family dynamics. This can include families in which the testator was married and had children from a prior relationship, or in which there is a history of sibling rivalry.
• Will might be vulnerable to challenge. If the testator is at an age where their mental capacity might be in question, or a situation in which there might be allegations of undue influence, including a no-contest clause in a will might be a way of proactively putting down challenges.

Of course, a no-contest clause can be appropriate any time a testator simply wants peace of mind that their wishes will be carried out as they direct. A no-contest clause is not a guarantee that a will won’t be challenged, but it does significantly reduce the likelihood of a will contest.

Is it Possible to Challenge a Will with a No-Contest Clause?

Even if a will has a no-contest clause, it may still be challenged without penalty in a Michigan court under certain circumstances. After all, if a will is invalid for some reason, it should not be used as the basis for distributing an estate.

In Michigan, courts will not give effect to a no-contest clause so long as the court finds that there was probable cause to bring a will contest. However, if the court finds that there was no probable cause to challenge the will, the person challenging the will would then lose their inheritance under the will. 

There might be probable cause to contest a will’s validity if the will was executed due to undue influence or fraud; if there exists a more recent valid will; if the will is not valid due to errors in execution; or if the testator lacked the mental capacity to make a will. 

What do you do if you are a beneficiary of a will with a no-contest clause, but you genuinely believe there is reason to challenge the will? A good first step is to consult with an experienced Michigan probate attorney who can advise you of the likelihood of success, and any other options you may have.

To learn more about no-contest clauses in a will or trust, and how to ensure that your wishes regarding your estate are honored, contact Estate Planning & Elder Law Services to schedule a consultation.