Using A No Contest Clause In A Will Or Trust
by Paul Lorrah
When creating an estate plan a person drafts, in writing, their wishes for division of assets upon their death.
Sometimes this means making a choice to give more to one child over the other or to completely disinherit someone.
Unfortunately though, a person who feels they should have received more can challenge the estate plan.
We all know - “anybody can sue anybody over anything” – the real question is whether a challenge to a will or trust will be successful.
One of the ways to help prevent a successful challenge may be to include a “no-contest” clause in a will or trust.
Generally, a no-contest clause is a provision in the document that imposes a penalty for questioning the document.
A clause that says, basically - “If you challenge the will, and loose, you get nothing”.
There are several ways to challenge an estate planning document. Lack of capacity, undue influence, and execution errors (improper signatures, or lack of witnesses/notaries) are probably the most common.
This clause may help for an heir that may feel that he/she should have received more or something else.
However, it won't help against a person who was disinherited completely.
“You get nothing” – will not present a deterrent to someone who is literally going to receive nothing either way.
No-contest clauses can effectively prevent contests in certain situations, but they are not for everyone or every situation. To learn more about no-contest clauses and whether you should incorporate one into your estate plan, you should discuss with your estate planning attorney.
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DISCLAIMER: Because of the generality of this blog, it should not be intended as legal or financial advice. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
