No-Contest Clauses in Wills And Trusts

Are you worried about the possibility of a challenge to your will or trust after you have passed away? No-contest clauses in your will or trust can be highly effective in dissuading challenges to the documents following your passing.

Is any potential that one or more of your beneficiaries might be so displeased concerning what you have left them in your last will or trust that they would bring a challenge, legally, towards it?

If that is the case, you may think about including a “no-contest clause” in your will, which stipulates that anyone that disputes the authenticity of the document in court is going to end up inheriting not a single thing.

What exactly occurs in cases of a contested will or trust, and can no-contest clauses actually help you circumvent that whole mess? Keep reading.

The Method of Contesting A Will Or Trust

A last will and testament clarifies your wishes concerning the distribution of your property following your passing. A living trust retains your assets for your benefit throughout your lifetime and for transferring to your selected beneficiaries at your passing by the individual you have named as your “successor trustee.”

So, What Occurs When Someone Wants to Challenge A Will Or Trust?

Contesting a will necessitates that a beneficiary file an official legal challenge against the authenticity of the will. An individual must have reasoning to bring a will challenge, which means they are required to have an interest, financially in the estate, typically as a designated beneficiary or an individual that is entitled to inherit based on current law.

Reasoning for a will contest might focus on the testator’s mental state—that they were not mentally sound when the document was carried out—or outside forces like unwarranted influence, coercion, or intimidation, all of which asserts that someone had forced their hand, as it were, of the testator in creating the will.

Furthermore, a will challenge may be pursued to present an updated version of the document, claiming that one is the authentic one.

Challenges to the authenticity of a trust are similar in all respects and typically call into question if the trust correctly reflects the trust creator’s desires. As with a will, outside forces like unwarranted influence, coercion, or intimidation, and even obscurity in the trust’s conditions may be claimed.

The method for challenging a will or trust could mean increased costs for the estate—and decreased inheritance for the beneficiaries. And because this post discusses court methods, it’s not a surprise that this can take quite a long time—possibly years—to clear up.

None of these unwanted effects of a will or trust challenge are alluring for your beneficiaries, so it’s something you are going to want attempt to avoid.

What Is A No-Contest Clause In A Will Going To Accomplish?

No-contest will clauses utilizes the warning of no inheritance at all—possibly what is bequeathed to the individual within the document—to discourage beneficiaries from challenging the authenticity of a will.

An example of a no-contest clause in a will is going to look a little like the below:

“Regardless of anything hereto the contrary, should any beneficiary challenge the conditions of this Will, including, without restriction, filing a challenge of entry of this Will to probate through [relevant part of the state Probate Rule], that beneficiary must not be entitled to any asset under the conditions of this Will, and for all intents of this Will, that beneficiary should then be considered to have pre-deceased me.”

No-contest clauses in a trust would contain likewise language, but don’t forget that your state may have particular requirements, so it’s always a good idea to speak with a professional when including legal language in the will or trust.

Pros And Cons of No-Contest Will Clauses

One of the main “pros” to including a no-contest clause in your will is that it typically does effectively hinder beneficiaries from making a legal challenge against the will. On the other hand, should there be any actual mistakes in the will or trust, the conditions of the clause leaves no choice for that beneficiary.

Something else to remember is that a no-contest clause does not automatically mean there are not going to be any issues or disputes concerning the estate. One huge warning, for instance, is that many states allow a beneficiary to challenge a will—even in the existence of this type of clause—provided that they have reasonable grounds to do so. And some states, like Florida, are not going to enforce no-contest clauses in the least.

Another important restriction of a no-contest clause is that they don’t apply to an individual that is not a named beneficiary in the will. Therefore, even when there is a no-contest clause, an individual omitted from the will that brings a contest is going to have no fear of ramifications of non-inheritance. They simply aren’t covered by the clause.

Consult With an Estate Planning Attorney

Many people most likely don’t have to worry about whether someone is going to contest their will or trust after their passing, but if you have grounds to believe you do and are considering including a no-contest clause in your will, it is more necessary than ever to make sure your wishes are thoroughly clear in your estate documentation. Because of this, there can be a lot of strategic decisions to make when you want to circumvent will or trust challenges later.

Do your loved ones yourself, and your estate a favor and speak with an estate planning attorney for counsel. These clauses can be highly effective, but you need to make sure they are created correctly for them to accomplish their goals.

Source:

1. Michelle Kaminsky, Esq. (2023a, March 20). No-contest clauses in Wills and trusts. LegalZoom. https://www.legalzoom.com/articles/no-contest-clauses-in-wills-and-trusts

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