No-contest Clauses

If only briefly, it is worth discussing in terrorem clauses, which are also known as “no contest” clauses. What is a “no contest” clause, and how does it work?

First of all, you have a right to dispose of your property as you desire. It’s yours, after all. And you can disinherit whoever you would like. You may wish to disinherit someone outright. You may wish to only contingently disinherit someone in the event that something does or does not occur. For example, some people disinherit any child who eventually develops drug problems.

In other cases, if you include a “no contest” clause in your Will, your Will expressly disinherits anyone who contests the Will. You may desire this for a variety of reasons. Unfortunately, there is no guarantee that your “no contest” clause will be enforced.

There is a growing trend in which courts are becoming more and more reluctant to enforce “no contest” clauses. Why? Even if you include a “no contest” clause in your Will, that does not prohibit someone from contesting your Will. It only expresses your desire that a contestant be disinherited. Anyone with standing could still bring suit in good faith even though they might not be successful.

Because of that, many courts find that the financial and familial costs that could result from a “no contest” clause (and the additional litigation it might cause) far outweigh a potential solution or agreement among the heirs.

(On another note: If you are concerned that someone might contest your own Will, or if you want to ensure that a particular individual will not receive anything from your estate, it might be worth exploring more advanced estate planning options such as the preparation of a Trust.)