Adam Keilen

Why would I contest a Will or a Trust? If your loved one’s Will or Trust is not what he or she really intended, there are corrective actions you can take so that your loved one’s wishes are properly carried out.

Who can contest a Will or a Trust? A beneficiary of a Trust, a devisee of a Will, or someone who would have inherited if the deceased died Intestate (without a Will/Trust) has standing to contest a Will or a Trust. Under Michigan Law, spouses, children, grandchildren, parents and in certain circumstances, siblings, are considered interested persons, if the deceased died Intestate.

What consequences should I be concerned with if I contest a Will or a Trust? Most Wills and Trusts have clauses in them stating that any interested person or beneficiary who contests the Will or the Trust will forgo their rights in the same – commonly referred to as a “no contest” clause; however, under Michigan Law, a “no contest” clause is only given effect if there is no probable cause for challenging the Trust/Will. MCL § 700.2518. In other words, the consequences of a “no contest” clause will only kick in when there was no reasonable basis (probable cause) to challenge the Trust/Will.

What facts give you probable cause to challenge a Trust/Will? The most common reasons for challenging a Trust/Will are:

• The deceased lacked capacity when the Trust/Will was made;
• Undue influence by another (oftentimes, a close family member);
• Fraud;
• The existence of a more recent Trust/Will; or
• The Trust/Will was not executed properly (not witnessed or signed properly).

The Take Away. If your loved one’s wishes are not carried out as they intended, and you have a reasonable basis for that belief, per the common reasons above, you can challenge the Will/Trust.