A no contest clause is a provision often included in wills to discourage will contests. No contest clauses provide that if any person challenges the will, such person shall be disinherited and get nothing under the will. No contest clauses are also called in terrorem or forfeiture provisions.
A testator, the person making the will, may ask an attorney to add this type of language to his will to deter an heir from taking legal action to have the will declared invalid. If an heir is successful in invalidating the will, he can inherit the share of the estate he would have received if the testator died without a will, called dying intestate. See dying without a will.
Could Your Estate Be Sued?
Unfortunately, after the death of a parent or spouse, it is not uncommon for children or a spouse to fight over the deceased personís estate. Survivors of the deceased are often very emotional and lingering resentments can turn into family feuds. If the estate has significant assets, at least one heir may decide to risk a legal battle for a chance at a larger inheritance. Even if the estate is small, if it includes a family farm, ranch or land that is coveted by several family members, title to the property can be a motivating factor for litigation. If you are trying to discourage an heir from suing to invalidate your will or living trust, it is usually recommended you include a no-contest clause and make a bequest to such heir significant enough that he would not want to risk being disinherited. However, if you live in a state where no-contest clauses are unenforceable, there is generally no reason to make a gift or bequest solely to deter an heir from disputing your will. To find inheritance laws for a particular state, see our list of
Even if applicable state law upholds no-contest clauses, there can be exceptions to enforcement of a no-contest provision based on state statutes or common law. An heir may be permitted to bring an action in good faith, based on probable cause, or initiate certain actions that fall within a safe harbor, in which case the heir would not automatically be
disinherited because the no-contest clause would not be triggered.
Probate laws change over time. If you executed a will or trust several years ago but have not had it reviewed by an attorney since that time, contact an attorney to determine whether your estate planning documents need updated. If you are concerned about shielding your estate from a will contest, ask your attorney about using an in terrorem clause to ensure the people you want to inherit your estate are protected.
Reasons For Using a No Contest Clause
No-contests clauses can be used for a variety of reasons and are often included in wills as boilerplate language. However, no-contest clauses should be carefully drafted to specifically address the testatorís intent and situation, as well as applicable state laws. Otherwise, an in terrorem clause may not be enforced.
In terrorem provisions are frequently used when a father or mother has remarried and wants to leave some or all of the estate to the new spouse rather than the children from the prior marriage. See stepparents estate plan. No-contest clauses are also used by people in ill health being cared for by someone that would not otherwise inherit their estate. There is often a desire to make a gift of property to a caretaker that has been loyal, especially when a child has been absent. If one child has been extremely dedicated, the parent may want to leave a larger inheritance to that child, thereby leaving his estate to the children in unequal shares. In these circumstances, the testator may be concerned about a challenge to the will.
If you are making an estate plan and are not leaving your property to those heirs that would inherit your estate if you died without a will, or are leaving it to your heirs in shares or proportions different than they would receive under the laws of intestacy, you may want to consider using a no-contest clause. Will and trust disputes are not only costly, they can tie up administration of your estate for years. The best way to determine if a no-contest clause should be included in your will is to consult an attorney in your state.
Should Your Will Have a No Contest Clause?
The decision about whether to include a no-contest provision in your estate planning documents depends on applicable state laws and your specific objectives. Some states do not recognize or enforce in terrorem clauses, while others enforce them only in limited circumstances. Some states do not enforce no-contest clauses for public policy reasons.
In states that only enforce forfeiture clauses in certain circumstances, this type of clause may not be enforced if the person seeking to invalidate the will or living trust has a reasonable basis to challenge the validity of the instrument. In many cases, there are alternative estate planning methods that are more effective. If your goal is to protect the inheritance of one beneficiary from other heirs, see greedy heirs.
If you are reviewing your estate plan because you want to control who gets your property when you die, you may also want to read our articles on:
Disinheriting an heir and
CA No-Contest Clauses
No Contest Clauses and Living Trusts
Forfeiture clauses can be used in living trusts. A living trust should have a governing law provision that indicates which stateís law should apply to the trust. The state law that is chosen to govern the trust should be one which enforces in terrorem provisions. One of the most important benefits of a living trust is that a properly funded living trust is more difficult to contest than a will. Therefore, if preventing estate litigation is a concern, you may want to make a living trust.