The situation isn’t necessarily simple because the legal move has limitations.

The no-contest clause creates a strong incentive not to challenge a will, unless a person is certain they can win. However, it isn’t always that simple, according to The Press-Enterprise in “The pros and cons of the no-contest clause.”

Sometimes it is possible to foresee that a family member or other person may not be satisfied with the inheritance planned for them through a will. For example a child who receives a smaller portion of a parent’s estate than other children, might not be happy about it.

An unhappy person seeking to challenge the validity of the will is always a possibility. One way to help prevent that is through the use of a no-contest clause.

These clauses state that anyone who challenges the validity of a will should receive nothing under that will. What this means in practice is that a challenger who loses would receive nothing.

Over the years, courts have carved out an important exception to the applicability of no-contest clauses.

If the person challenging the will had probable cause for the challenge, then the court will not apply the no-contest clause, even if the challenge fails.

This allows people to bring potentially meritorious claims to the attention of the court. The no-contest clause will still be applied, when the court finds that the contest to the will was brought completely without cause.

No-contest clauses are not perfect. However, they remain a useful tool to help prevent challenges to wills.

An estate planning attorney can advise you in creating an estate plan that meets your unique circumstances and may include a no-contest clause or other legal way to reduce the risk of family fights over the estate.

Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.
Post A Comment