No-Contest Clauses in Wills and Trusts

These provisions can head off a will contest after your death.

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If you’re afraid that someone might challenge the validity of your will or trust in court after your death, you may be tempted to add what’s called a “no-contest clause” to your document.

These clauses are designed to discourage disgruntled relatives from contesting your will or trust. They work by providing that anyone who does mount a legal challenge—and loses—doesn’t inherit a penny from you.  

Here’s a sample clause, which puts that simple idea into typically hard-to-understand legal jargon:

“If any beneficiary under this will seeks to obtain in any proceeding in any court an adjudication that this will or any of its provisions is void, or seeks otherwise to void, nullify, or set aside this will or any of its provisions, then the right of that person to take any interest given to him or her by this will shall be determined as it would have been determined had such person predeceased the execution of this will without issue.”

How a No-Contest Clause Works

A no-contest clause will discourage someone only if that person has something to lose by challenging the will in court. For example, say you have two grown children, one of whom cannot handle money responsibly. If you leave him $10,000, he might think twice about challenging your will, because if he sues and loses, the no-contest clause means he wouldn’t get the $10,000.

But if you entirely (or almost entirely) disinherit someone, a no-contest clause won’t have any effect. To go back to our example, if you leave your spendthrift son nothing at all, he has nothing to lose by trying to overturn your will in court. If he does nothing, he won’t inherit anything from you anyway, and if he wins (by getting your will declared invalid), he would inherit half of your estate under state law. (Though of course, it does cost money to go to court and contest a will.)

State Rules That Limit No-Contest Clauses

Putting a no-contest clause in your will can give you a false sense of security, because the clause might not be enforced. Your state’s law will affect how effective a no-contest clause will be—or if it will be effective at all.

In Florida and Indiana, courts do not enforce no-contest clauses. In these states, a beneficiary who sues to invalidate part or all of your will, but loses, still inherits whatever you left him or her in your will.

About half of the states do enforce a no-contest clause unless the person suing had “probable cause”—that is, a good reason—to sue. The courts don’t want to discourage worthy lawsuits that seek to overturn a will that was made by someone of unsound mind or who was being manipulated by a greedy interloper. You should think about this issue, too. You wouldn’t want a no-contest clause to keep your child from suing to get your will declared invalid if the will really was fraudulent or the result of undue influence over you.

Proceed With Caution

Most people don’t need to worry about anyone challenging their will or trust in court. But if you have real reason to fear a challenge, it’s a good idea to talk to a local estate planning attorney. The attorney should be knowledgeable about how courts in your state treat no-contest clauses. And when you explain your particular worries—who you think might challenge your will, and why—the lawyer should be able to suggest some tactics to deal with the potential problem.

There are, for example, other steps you can take to head off a will contest.  There are also ways to leave money to someone in a way that prevents them from quickly spending it all in ways you wouldn’t approve of, including "spendthrift" trusts.

by: , J.D.

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