No-contest Clause

What is a no-contest clause? 

A no-contest clause is a provision incorporated into a will stating that anyone who unsuccessfully contests the will forfeits any inheritance they would have received under it. 

Key takeaways  

• No-contest clauses in wills are intended to discourage beneficiaries from disputing the provisions of the will, typically by threatening to disinherit anyone who challenges the will. However, their enforcement varies depending on state laws and the specific circumstances of the case.
• There are exceptions to the enforcement of no-contest clauses, often in cases where a beneficiary has probable cause to challenge the will due to suspected fraud or undue influence. 
• Despite the benefits of including a no-contest clause in your will, there are also potential disadvantages to doing so

The probate court’s role in will contests 

Validating the will is the first thing the probate court must do after it receives proof of the decedent’s death and approves the appointment of the executor designated in the will. A will is meant to reflect the testator’s wishes and intentions regarding how their estate should be distributed upon their death. 

Therefore, if it could be shown that the testator lacked capacity when executing the will, or did it under duress, coercion, undue influence, or fraud, the probate court should invalidate the will. If the will is invalidated, based on the specific facts and circumstances of the case and state law, the probate court may 1) reinstate a prior version of the will, if there was one; 2) modify the will or strike amendments such that it will reflect the decedent's wishes had the fraud, coercion, etc. not occurred, or 3) distribute the assets per the state’s laws of intestate succession.

Exceptions: State Variations, Probable Cause, and Good Faith 

The enforceability of no-contest clauses is an area where state succession laws significantly vary. There are several different approaches taken by states. 

• Always enforceable: Some states will always enforce no-contest clauses regardless of whether or not the will was contested in good faith. 
• Never enforceable: A minimal number of states will never enforce them as a matter of public policy since enforcing them may deter people who have legitimate claims, which can also have the negative effect of incentivizing potential wrongdoers to perpetrate fraud or forge wills because they know it is less likely to be challenged.
• Good faith/Probable Cause Exceptions. In some states, if a beneficiary contests the will in good faith (such as with a genuine belief that the testator lacked capacity when executing the will) or if they have probable cause to believe that there has been wrongdoing, they might be protected from being disinherited under the no-contest clause. 

Advantages and Disadvantages of Including a No-Contest Clause in Your Will

Incorporating a no-contest clause in your will is a strategic decision influenced by several factors, including the nature of your estate and the potential reactions of your beneficiaries. On the one hand, no-contest clauses can mitigate the time and costs of probate by avoiding disputes (the costs of which are often paid out of the probate estate, thereby depleting the funds left over for distribution to the beneficiaries).  

Conversely, no-contest clauses can have unintended consequences. They may deter beneficiaries with legitimate claims from raising potentially valid claims of fraud, undue influence, coercion, etc., for fear of being disinherited.