Michigan No-Contest Clause: When It Actually Works

Estate planning attorneys love telling clients about no-contest clauses. The pitch sounds great: "Include this single paragraph in your will and any heir who challenges your wishes loses everything." For decades it was true. Then in 1998, the Michigan legislature passed MCL 700.2518 and added a "probable cause" exception. In 2010, the Michigan Trust Code added the matching MCL 700.7113 for trusts. Together those two statutes mean a Michigan no-contest clause is unenforceable any time the challenger had a reasonable belief their challenge would succeed -- a much lower bar than people assume. Today, no-contest clauses in Michigan wills and trusts are still useful, but only if you understand what they can and cannot do, and only if you build the plan in a way that actually creates the deterrent. Here is the DIY guide.

What a No-Contest Clause Says

A no-contest clause -- often called an "in terrorem" clause from the Latin for "in fear" -- is a paragraph in a will or trust that says: if you challenge this document, you lose your inheritance. The idea is to scare beneficiaries away from contesting your wishes. The penalty is forfeiture of all or part of the gift they would have received.

A typical clause looks something like this: "If any beneficiary contests my Will or Trust, that beneficiary forfeits all rights and interests under this document, and the forfeited share will be distributed proportionally to the other beneficiaries who did not participate in the contest."

Sounds powerful. In some states (Florida and Indiana, for example) the clause is essentially unenforceable. In Michigan it IS enforceable -- with a giant exception that swallows most of the rule.

Michigan Law: The Probable-Cause Loophole

Michigan no-contest law lives in two parallel statutes:

• Wills (MCL 700.2518): "A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings."
• Trusts (MCL 700.7113): "A provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding."

Two important things to know about MCL 700.7113. First, the same probable-cause exception applies to trusts -- even though for a long time the question was open. Second, per Greenleaf Trust's analysis of the Michigan Trust Code, this is "one of the few provisions of the Michigan Trust Code that cannot be altered by the trust settlor" (MCL 700.7105(2)(q)). You cannot draft around it. Even if your trust says "this no-contest clause applies regardless of probable cause," Michigan courts will ignore that language and apply the statutory exception anyway.

Translation: if the person challenging your will or trust has any reasonable basis for the challenge, the no-contest clause does nothing.

What Counts as Probable Cause

Michigan courts have adopted the Restatement (Third) of Property definition, approved in In re Estate of Stan, 301 Mich App 435 (2013): "Probable cause exists when, at the time of instituting the proceeding, there was evidence that would lead a reasonable person, properly informed and advised, to conclude that there was a substantial likelihood that the challenge would be successful."

This is a low bar. As the Michigan Bar Journal noted in 2014, "skilled practitioners can usually dream up some probable cause justification for any given fact set." A few real-world examples of probable cause Michigan courts have accepted:

• Evidence the testator suffered from dementia at the time of signing.
• Evidence of physical proximity, dependence, or control by the named primary beneficiary (suggesting undue influence).
• An unusual change to the will or trust shortly before death.
• Discrepancies between the document's signature and known prior signatures.
• Evidence the testator's stated wishes (to friends, doctors, or in earlier drafts) differ materially from the document.
• Procedural irregularities -- missing witness signatures, improper notarization, unclear chain of custody.
• Trust provisions that arguably violate Michigan law -- as happened in In re Mary E Griffin Revocable Grantor Trust, where the Michigan Court of Appeals found probable cause because the trust violated the rule against perpetuities.

What does NOT establish probable cause: a beneficiary's disappointment, a long-running family feud, suspicion without evidence, or a hunch that the testator "could not have meant this."

Why It Will Not Stop Excluded Heirs

The most overlooked weakness of a no-contest clause: it only works against people who would lose something. If your will leaves $0 to your estranged son and includes a no-contest clause, your son has nothing to forfeit. The clause is meaningless to him. He can challenge with no economic risk.

This is why Michigan estate planning attorneys often advise: give the troublesome heir a meaningful gift -- enough that they would prefer to take it quietly rather than risk losing it. A typical structure: leave the difficult heir 10-20% of what the "natural" distribution would have been. Big enough to hurt to lose, small enough to feel unfair, but contesting risks all of it. That economic tension is the only real deterrent power a Michigan no-contest clause has.

Quote from the Michigan Bar Journal: "To provide a true disincentive, the drafter must provide a gift to the potential contestants large enough to make them think about whether the amount they would gain through a successful contest outweighs the risk of losing everything if the challenge fails."

The One Drafting Trick That Still Works

Here is the single most important drafting choice for a Michigan no-contest clause. Make the gift to the potentially-contesting heir CONDITIONAL on not challenging the document, and clearly large enough to deter them. Combine that with a clearly drafted no-contest clause that specifies what conduct triggers forfeiture. Result: the heir has to weigh "take my gift quietly" against "spend $20,000+ on litigation that I might lose."

Example. You have three children. You want to leave most of your estate to two of them and a smaller share to the third (perhaps because the third has caused family trouble). Without a no-contest plan, the third may sue. With the right plan:

1. Leave the third child enough to make litigation unattractive -- say, $50,000 instead of $0.
2. Include a no-contest clause that says any challenge to the will or trust triggers forfeiture.
3. Have your will properly witnessed, ideally include a self-proving affidavit, and document your reasons in a separate "statement of intent" letter to your personal representative (not in the will itself).
4. Get a medical capacity evaluation if you are over 80 or have any cognitive concerns, dated within 60 days of signing.
5. Consider having the signing video-recorded with the testator clearly stating their wishes and identifying their family.

This combination is what Michigan attorneys actually use to make no-contest clauses effective. The clause itself is one ingredient. The economic structure of the gift, the procedural rigor of the signing, and the contemporaneous evidence of capacity are the other ingredients.

No-Contest Clauses and Trustee Disputes

Some Michigan trusts include sweeping no-contest language meant to prevent ANY challenge -- including challenges to a trustee's specific decisions or accountings. Per Greenleaf Trust's analysis, "innocent questions posed to the trustee or the court by a beneficiary could be construed as a violation of a no-contest clause" when the clause is written too broadly.

The Michigan Supreme Court is still working through whether asking the court to interpret a trust (called a "petition for instructions") triggers a no-contest clause. Most commentators argue it should NOT, because the petition is asking the court to enforce the trust as written, not to challenge it. But the law is unsettled.

If you are drafting your own Michigan trust, keep the no-contest clause narrow. Make it apply only to actions that challenge the validity of the trust or the testator's mental capacity. Do NOT extend it to "any proceeding relating to the trust." That over-broad language can backfire and discourage legitimate beneficiary inquiries.

Sample Michigan No-Contest Clauses

A reasonably balanced Michigan no-contest clause for a will:

If any beneficiary of this Will, directly or indirectly, contests the validity of this Will or any part of it, or institutes any proceeding to set aside, void, or nullify this Will or any provision of it (other than a proceeding to construe or interpret this Will), then all gifts, devises, and benefits to that beneficiary under this Will shall be revoked, and that beneficiary shall be treated for all purposes as if he or she had predeceased me leaving no descendants, and the forfeited share shall pass to my other beneficiaries proportionately. This provision shall not apply to a proceeding initiated with probable cause as defined in MCL 700.2518.

The matching clause for a Michigan trust:

If any beneficiary of this Trust, directly or indirectly, contests the validity of this Trust or any part of it, or institutes any proceeding to set aside, void, or nullify this Trust or any provision of it (other than a proceeding to construe or interpret this Trust or to compel the Trustee to perform duties expressly imposed by this instrument), then all interests of that beneficiary under this Trust shall be revoked, and that beneficiary shall be treated as if he or she had predeceased me leaving no descendants. This provision shall not apply where probable cause exists under MCL 700.7113.

Two important features: the carve-out for proceedings to construe or interpret the document (so legitimate beneficiary inquiries do not trigger forfeiture) and the explicit reference to the Michigan statute (a court is likely to enforce the clause more readily when it mirrors statutory language).

Common DIY Mistakes

1. Writing the clause without leaving the difficult heir a gift. If they have nothing to lose, the clause is meaningless against them.
2. Trying to override the probable-cause exception in the document. Michigan courts will ignore that language -- you cannot contract around MCL 700.7113.
3. Over-broad language covering any "proceeding relating to" the will or trust. Can discourage routine beneficiary questions and create unintended litigation.
4. Using the same clause from a non-Michigan template. Many states have stricter or looser no-contest doctrines. Reference Michigan statutes explicitly.
5. Failing to document capacity at signing. A signed contemporaneous letter from your primary care doctor confirming your mental clarity at the time of signing is far more valuable than the no-contest clause itself.
6. Combining a no-contest clause with sloppy execution. Missing witness signatures or improper notarization create the very probable cause that destroys the clause.
7. Not telling family in advance. The clause works as a deterrent only if everyone knows it exists. Quiet inclusion that surprises heirs after death often fails as a deterrent because the heir cannot weigh the risk in advance.
8. Forgetting the clause entirely in the trust when it is only in the will. If a meaningful portion of your wealth passes through the trust, the trust needs its own no-contest clause -- MCL 700.7113, not MCL 700.2518, governs there.

When and How to Use One (60-Minute DIY)

For most Michigan families, the answer is yes, include a basic no-contest clause -- but understand it as one layer of defense, not as a silver bullet. Use one if any of the following apply:

• Blended family with potential for stepchildren-versus-biological-children disputes.
• Unequal distributions among adult children.
• An estranged or troubled heir who is still receiving something.
• A significant disinheritance that you want documented but not litigated.
• Family conflict patterns that make a post-death contest likely.

How to do it yourself in 60 minutes:

1. Choose a Michigan-specific will or trust template that already includes the EPIC-compliant no-contest language. The CreateMIWill Will Kit and Trust Kit both include it.
2. Decide whether to give the difficult heir a meaningful gift (10-20% of the natural share) to create the economic deterrent.
3. Execute the document properly. Two disinterested witnesses, signed in everyone's presence, self-proving affidavit notarized.
4. Document capacity contemporaneously. A simple "statement of intent" letter that you sign, addressed to your personal representative, explaining why you made the distribution choices you did. Keep with your will.
5. Update if life changes. Divorce, death of a beneficiary, new child, or family reconciliation can all change the calculus. (See our update guide.)

Frequently Asked Questions

Are no-contest clauses enforceable in Michigan?

Yes -- unless the challenger has probable cause to bring the contest. Both wills (MCL 700.2518) and trusts (MCL 700.7113) include the same probable-cause exception. The exception is mandatory under Michigan law and cannot be contracted around.

Can I disinherit my child completely and add a no-contest clause to stop them from suing?

You can disinherit them, but the no-contest clause will not stop them. With no gift to forfeit, the clause has no deterrent power. Better strategy: leave them a meaningful but reduced amount.

Does a Michigan no-contest clause apply to undue-influence claims?

Yes, in the sense that an undue-influence challenge IS a contest. But undue influence is one of the most common grounds for probable cause -- evidence of dependence, isolation, and sudden changes near death often qualifies. So a no-contest clause will rarely deter a well-founded undue-influence claim.

What if my beneficiary just asks the court to interpret an ambiguous provision?

Generally that is not a contest. A petition asking the court to construe or clarify the document is usually treated as enforcing the testator's intent, not challenging it. Make sure your no-contest clause specifically excludes "proceedings to construe or interpret."

Should I include a no-contest clause in both my will and my trust?

If you have both documents, yes. The wills statute (MCL 700.2518) only covers wills; the trusts statute (MCL 700.7113) only covers trusts. A no-contest clause in one document does not automatically cover the other.

Can I add a video recording to back up my no-contest plan?

Yes, and many Michigan estate planning attorneys recommend it for documents that may be contested. Have the testator clearly state their identity, family relationships, distribution plan, and reasoning. Save the video with your will. Most modern phone recordings are admissible.

How much should I leave a troublesome heir to make the no-contest clause work?

Enough to hurt to lose. There is no formula, but $25,000-$100,000 (depending on overall estate size) is common as the floor. The point is to create a credible economic risk if they decide to contest.

Will the court tell my heir in advance whether they have probable cause?

Sometimes. Michigan courts have allowed "petitions for instructions" where a beneficiary asks the probate court to rule on whether a planned challenge would trigger the no-contest clause. The Michigan Supreme Court has been working through the procedural rules around this. As a planner, assume your heir CAN seek that determination in advance.

Does the no-contest clause apply to inherited IRA or life insurance challenges?

Generally no -- those pass by beneficiary designation outside the will and trust. The no-contest clause only governs what is in the document containing it. Update your beneficiary forms separately. (See our retirement beneficiary guide.)

What if my beneficiary tries to remove the trustee -- does that trigger the no-contest clause?

Depends on the clause's wording. A petition to remove a trustee for cause is not typically a contest of the trust itself. But if the clause is over-broad and covers "any proceeding relating to the trust," removal petitions might trigger forfeiture. Use narrow drafting.

Build the Plan With the Right Protections

A Michigan no-contest clause is one piece of a contest-resistant estate plan, not the whole thing. The CreateMIWill Will Kit and Trust Kit include EPIC-compliant no-contest clauses with the carve-out for construction proceedings, plus the self-proving affidavit, statement of intent template, and capacity-documentation guidance that actually make the deterrent stick.