Should I Add a No-Contest Clause to My Will?

One section of the estate planning questionnaire I send my clients asks them to rate their level of concern about various issues. One issue about which most indicate a high concern is that someone will contest their Will.

What is a Will Contest?

A Will contest is just what it sounds like — a lawsuit that challenges the validity of a Will.

Who Can Contest a Will?

Generally, only those who have a personal financial interest that will be affected by the probate or defeat of the Will can contest.

On what Grounds Can Someone Successfully Contest a Will?

Wills can’t be set aside just because the challenger doesn’t like what it says. Rather, the person contesting the Will has the burden of proving that the Will is invalid. The following are common grounds on which a Will can be contested:

• Improper Execution: the person making the Will (the testator) did not sign the Will in accordance with state laws.
• Lack of testamentary capacity: the testator was not of sound mind when he or she signed the Will.
• Undue influence: Someone was improperly influencing the testator.
• Fraud: Someone tricked the testator into signing the Will or forged the testator’s signature.

When are Will Contests Likely?

Will contests are most likely when someone who would inherit under the intestacy statutes ends up getting disinherited or receiving a substantially smaller share than they would have received if there were no Will. Intestacy statutes are state laws that control who will inherit your property if you die without a Will.

For example, suppose you are a single person with three children. Intestacy statutes provide that when a single person dies without a Will, his property passes to his or her children equally.

The incentive for a Will contest would not exist if your Will passed the property to all three children equally. That’s because the beneficiaries would receive the same share under the intestacy statutes as they would have under your Will.

However, if you create a Will that disinherits one child from whom you’re estranged, he would have an incentive to challenge your Will. Why? Because a successful Will contest would mean he would get one-third of your estate under the intestacy statutes.

What is a No-Contest Clause?

A no-contest clause is a provision in a Will that disinherits a beneficiary who contests the Will.

Taking the example above, suppose rather than disinheriting his estranged child, he instead decided to give him 10 percent of the estate, and each of his other children 45 percent of the estate.

A no-contest clause would provide that if the estranged child challenged the Will, he would risk losing the 10 percent of the estate allocated to him. A no-contest clause would not have any power if the challenger has nothing to lose by challenging a Will.

Are No-Contest Clauses Enforceable?

No-contest clauses are enforceable in most states. However, many states construe them narrowly and do not enforce them if there is probable or just cause for challenging the Will, and the challenger brings the action in good faith.

Taking the same example above, suppose the estranged child challenges the Will because he has evidence that his estrangement was caused by lies his siblings told their father so they could receive a larger share of the estate. In such a situation, the Court may find that the no-contest clause is not enforceable against the estranged child.

Additionally, courts have found that certain lawsuits do not trigger a no-contest clause. For example, filing an action to compel executors to perform their duty or provide an accounting will likely not trigger a no-contest clause because such actions do not seek to override the testator’s dispositive provisions in the Will.

How to Minimize the Risk Your Will Someone Will Successfully Contest Your Will?

There is no risk anyone will contest your Will if you intend to distribute your property to your beneficiaries in a matter that tracks the intestacy statutes.

If, however, you intend to make an unequal distribution or disinherit someone who would inherit under the intestacy statutes, take the following steps to minimize the risk:

• Engage a lawyer to prepare your Will. A lawyer will be able to evaluate your situation and advise on steps you can take to avoid hurt feelings that can result in litigation after your death.
• Make sure to properly sign your Will in compliance with your state’s laws. This includes not only following the requisite formalities but also going through the process of establishing testamentary capacity and intent.
• Share the reasons you are making an unequal distribution so that no one is surprised after your death. Your beneficiaries are more likely to be dissatisfied if you keep the details of your plan secret.

You can’t control whether someone will challenge your Will, but taking these steps will increase the likelihood a challenge will not be successful.