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Tirey Law Nov. 22, 2017

Young couple in meeting women is upset and man is happyIncluding a no-contest clause in a will can be a powerful deterrent to challenges to the will.  These clauses do, however, have limitations.

Sometimes it’s possible to foresee that a family member or other person may not be satisfied with the inheritance planned for them through a will.  A child who receives a smaller portion of a parent's estate than his siblings, for example, might be upset.  This can lead to an unhappy person seeking to challenge the validity of the will.  

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.

This creates a strong incentive not to challenge a will unless a person is certain that they can win. It is not quite that simple as The Press-Enterprise discusses in "The pros and cons of the no-contest clause."

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, but they are still a useful tool to help prevent challenges to wills.

If you would like to create an estate plan that helps prevent your family from fighting over your estate, then seek an estate planning attorney to find out more about no-contest clauses and other ways to prevent challenges to your estate plan.

Reference: The Press-Enterprise (Aug. 5, 2017) "The pros and cons of the no-contest clause."