No Contest Clauses

Although there are many reasons for preparing an estate plan, many people do it because they want to decide where their assets go after their death. While I cannot guarantee that your assets will be distributed according to your wishes, there are several tools that help protect your distribution plan. One of these tools is a No Contest Clause which states that if anyone contests the Will or Trust, they will not receive their share of the distribution.

Sometimes No Contest Clauses are appropriate, and sometimes they are not. They can be used to protect the client’s interest, but sometimes they can be used to shield the actions of someone trying to take advantage of the client. For instance, if a corrupt person influenced someone to write a Will giving money to that person and that Will included a No Contest Clause, it would be harder for an innocent person to contest the Will. Because of these issues surrounding No Contest Clauses, courts sometimes enforce them and sometimes they do not.

A “contest” is a petition or complaint filed with the court. Even with a No Contest Clause, there are certain types of contests that will be allowed if they are brought with “probable cause.” Because the analysis can be somewhat complicated, it’s best to discuss with your attorney before filing a contest whether it will trigger a No Contest Clause or not because you may need to decide whether it’s worth the risk to file the contest.

So, whether you are writing your Will or you are contesting someone else’s Will, it’s important to know about No Contest Clauses.

 

Originally published by Susan, April 22, 2015.