Can a No-Contest Clause Prevent My Will from Being Contested?

 Posted on November 07, 2022 in Estate Planning

When a person dies, the loss can be extremely difficult on that person's surviving family members and friends. The intense emotions associated with such a situation can lead a grieving loved one to act uncharacteristically and even to unnecessary disputes over a variety of considerations. One common point of a contention is often the decedent's will, and a contested will can create instability within the surviving family for many years to come, if not forever. If you hope to keep such a fight from dividing your family after your death, you might consider adding a no-contest clause to your will.

Understanding No-Contest Clauses

A no-contest clause, also called an in terrorem clause, is a provision that can be added to a will that threatens to disinherit any person who contests the validity of the document. The clause essentially says that if anyone challenges the will, they automatically forfeit their inheritance or receive a very small percentage of what was originally intended for them.

While the addition of a no-contest clause may seem like an easy way to prevent family members from fighting over your estate after you are gone, it is important to understand the various pros and cons before making this decision.

Pros of Adding a No-Contest Clause

There are several reasons why you might want to add a no-contest clause to your will, including:

• It may deter someone from challenging the validity of your will in the first place. The mere existence of a no-contest clause may be enough to discourage certain people from trying to contest the document, as they know they would automatically forfeit their inheritance if they did so.

• If someone does challenge the document, the no-contest clause can help simplify the probate process. When a will is contested, the court must often get involved in order to resolve the dispute. If there is a no-contest clause in place, however, the court can simply enforce the clause and disinherit the person who challenged the will, without having to spend additional time and resources adjudicating the matter.

Cons of Adding a No-Contest Clause

Despite the potential benefits, there are also some drawbacks to adding a no-contest clause to your will, including:

• It may discourage legitimate challenges. A no-contest clause can dissuade people from challenging a will even if there is a good reason to do so. For example, if someone believes that you were not of sound mind when you created the document, they may be hesitant to come forward out of fear of being cut out of your estate.

• It may not always be enforceable. While most states recognize and enforce no-contest clauses, there are some exceptions. For instance, if the person challenging the will can prove that the document was created or amended through fraud, duress, or undue influence, the probate court could set aside the no-contest clause.

• It may not completely deter challengers. Even if a no-contest clause is included in your will, there is always a chance that someone will choose to contest the document anyway. In such cases, the person challenging the document would need to be prepared to forfeit their inheritance if they are unsuccessful.

A Fort Worth Estate Planning Lawyer Can Help You Decide Whether to Include a No-Contest Clause

Whether or not you decide to include a no-contest clause in your will or trust is ultimately up to you, but it is important to talk to an experienced Tarrant County estate planning attorney about your specific situation before making any decisions. Call 817-349-7330 for a free consultation with a member of the team at Gonzalez Law, PLLC today.

Sources:

https://www.law.cornell.edu/wex/no-contest_clause

https://www.actec.org/assets/1/6/State_Laws_No_Contest_Clauses_-_Chart.pdf?hssc=1