No-Contest Clauses and How They Work

Contesting a Will is not just the stuff of TV melodramas — it happens in real life. After you are gone, if a family member believes you didn’t have the requisite mental capacity to execute your Will, that someone exerted undue influence over you, that someone committed fraud, or that the Will wasn’t executed properly, that person may have grounds to make a challenge. Is there anything you can do to prevent that?

A no-contest clause is a provision you can include in your Will that states that if anyone files a lawsuit to challenge who you have provided for in your estate plan, that person will receive nothing. You may consider using it if you have “problem beneficiaries” you are afraid will just squander their inheritance.

Here are some other ways to help you avoid contests:

• Make sure your Will is properly executed. It should be drafted by a professional and signed and witnessed by two independent witnesses under the supervision of an attorney.
• Explain your decision. Much of the discussion about contesting a Will assumes that it is done in bad faith by an heir who just wants a bigger slice of the pie. But people also file contests because they don’t understand your decision and don’t believe that you would have made it of your own volition. Explaining your decision ahead of time eliminates these good-faith complainers. You can also include an explanation with the Will, either in the body of the document or as a separate letter.
• Get the Will signing on video. This allows your family members and the court to see that you are signing the Will freely. If you appear to be of sound mind in the tape, you also eliminate another potential charge.
• Avoid the appearance of undue influence. Family members shouldn’t be present when you discuss the Will with your attorney or when you sign it.
• Consider using a Revocable Living Trust to distribute your property at death rather than a Will. A Revocable Living Trust greatly reduces the chances of a beneficiary or heir contesting your estate plan.

Be careful about relying on the no-contest clause in Florida or Indiana, where no-contest clauses are unenforceable. In other states, there are exceptions that can render the clause useless. Your attorney can help you plan the best strategy for you.

A no-contest clause can be a good tool for discouraging a Will contest. Reviewing the plan sends a powerful message to family members that you are consistent and aware of what it contains.

Will contests can drag on for years, keeping all heirs from getting what they’re entitled to. It may be impossible to prevent relatives from fighting over your Will entirely, but with this step, you can try to minimize squabbles and ensure your intentions are carried out.

Do you have questions?

You can count on Ericson, Scalise & Mangan, PC to provide you with sound guidance and experience in these uncertain times. For assistance with your legal needs, please contact us today at (860) 229-0369, or email us at info@esmlaw.com.