The No Contest Clause

In previous posts, I discussed grounds for will contests, including lack of mental capacity, undue influence, fraud, and duress. Sometimes situations arise where there are valid reasons to contest a will to ensure that the testator’s actual wishes are fulfilled. The possibility of a will contest helps deters those who would coerce a testator into writing a will that does not accurately reflect his or her wishes, while at the same time protecting the interest of the testator’s intended heirs.

No discussion of will contests, however, are complete without covering the no contest clause. Like many available legal causes of action, a will contest can be abused by unscrupulous individuals seeking to dishonestly use the law for their own selfish gain.

Many testator’s and their lawyers have become aware of the threat of a will contest. Even if unsuccessful, a will contest can be time-consuming and expensive, thereby depleting the inheritance and wealth of the testator’s rightful beneficiaries. To help combat this issue, many wills contain a no contest clause.

A no contest clause prescribes disinheritance for anyone who contests the validity of the will. Therefore, where a no contest clause is present in a will, anyone who challenges the validity of the will will inherit nothing, even if the will otherwise provides for that individual.

No contest clauses are generally enforceable, so long as the will is valid—though this varies from one jurisdiction to another. If a court finds the will to be invalid, however, the terms of the will, including the no contest clause, are unenforceable.

So, those who challenge a will in which they are beneficiaries take a significant risk when there is a no contest clause involved. If they win, they will likely inherit more. If they lose, however, they will inherit nothing, not even what they would have had they not challenged the will’s validity in the first place.

Obviously, those who inherit nothing under the will risk very little by contesting its validity, but for those who otherwise stand to inherit, the potential loss can be significant, particularly when dealing with a very large estate.

For this reason, if the testator believes that a will contest is likely, he or she should consider providing for the potential challengers in the will. This provides an incentive to these potential challengers to simply accept their inheritance and allow the will to go unchallenged.

So, for example, if a wealthy older gentleman marries someone much younger and wants to provide for his new wife in his will, he should still leave a significant share to his surviving children. Leaving everything to the new wife all but ensures a will contest, whether a no contest clause is present or not.

This is yet another reason why careful planning of your estate should be done with the assistance of a competent attorney. A few relatively simple actions now could spare your family significant difficulties later.