By Alan A. May
We, at Kemp Klein when requested to do so by clients, often write Trust agreements with “no contest” provisions which prohibit contests against a Trust, at the risk of contestant losing the share provided for in the Trust.
The law of Wills allows a beneficiary to contest and receive his or her share if that contestant had “probable cause” to contest a Will. Probable cause has been defined liberally.
Recently the Michigan Court of Appeals ruled that the probable cause doctrine should be read into Trust law; thus allowing someone to contest a Trust if they had probable cause without losing their share.
This firm, in a case where we represented no party and took no fee, asked for leave to file what is known as an Amicus Curiae Brief, before the Michigan Supreme Court to show that the decision by the Court of Appeals was invalid and that a person making a Trust had a right to try to prevent a contest to a Trust under existing law. We did this because we believe our clients, under existing Trust law, have a right to have enforced what they direct.
We are pleased to tell you that our Brief was accepted and the Michigan Supreme Court ruled in our favor; thus allowing “no contest” provisions in Trust documents, without regard to whether the contestant may have probable cause.
The Michigan legislature has before it a new law which would put back into effect the probable cause doctrine.
If you do not have a no contest provision in your Trust and you want one, it should be done as soon as possible, prior to the time that the legislature changes the law.
For further information regarding these matters, please contact Mr. May at 248.740.5670 or
click here to send an email.
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