No Contest Clauses: Understanding the Pros and Cons

No Contest Clause

Summary: A No Contest Clause can be a strong deterrent to those who might be considering challenging a will or trust. But, as Siedentopf Law explains, this provision may not be as all-encompassing as it seems.

For the purposes of estate planning, a No Contest Clause is included in a will or a trust to discourage heirs and beneficiaries from potentially challenging the documents after a person’s death. Typically, the clause contains language that the whoever challenges or attempts to invalidate the will or trust will be completely disinherited. In some situations, a No Contest Clause can be a powerful deterrent. But the application of this provision can be somewhat limited.

If a person contesting an estate plan has probable cause to bring that claim, then the court may not enforce the No Contest Clause. Probable cause exists where the person challenging the will or trust has factual information that would cause a reasonable person to believe that they have a reasonable likelihood of successfully proving their claim in court. For example, the probable cause might exist if there was some proof that the person had been tricked into signing a will or had been pressured into giving more to someone through undue influence. If a person challenges the estate plan in good faith and on a factual and legal basis, the judge will not likely enforce the No Contest Clause.

There are two types of challenges, however, where probable cause is not a defense to enforcing the No Contest provision. If a beneficiary files a creditor’s claim (they are arguing that the estate owes them money), this can still trigger the No Contest Clause, meaning that he or she may recoup some of their money but they will otherwise be disinherited from the estate. Or, a beneficiary could challenge the transfer of property on the grounds that the property was not the decedent’s to begin with. Again, this type of claim forces the challenger to choose between their lawsuit and their inheritance.

So, on the positive side, a No Contest Clause can be a strong deterrent to those who might be considering challenging a will or trust. But alternatively, this provision may not be as all-encompassing as it seems. Those who believe they have probable cause can still challenge the estate plan and it may not trigger enforcement of the No Contest Clause.

A person considering challenging a will or trust should carefully weigh the options, as they may be risking disinheritance altogether. For more information about No Contest Clauses, or if you are interested in setting up an estate planning consultation, contact Siedentopf Law at Sarah@EstateLawAtlanta.com or (404) 736-6066.

© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and EstateLawAtlanta.com with appropriate and specific direction to the original content.

Categories