How to Draft a Will With a No Contest Clause

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The formal term for a no-contest provision in a last will and testament is “in terrorem” -- in other words, the language is intended to strike terror in the heart of any beneficiary who thinks he might want to challenge your will. Before you add a no-contest clause to your will, make sure your state allows it and that the law will uphold such a provision. Not all states do.

What a No-Contest Clause Says

A no-contest clause warns your beneficiaries that if any of them should challenge your will, such as by saying that you were incompetent or under duress at the time you wrote it, that beneficiary forfeits the bequest you gave him and receives nothing. The manner in which you convey this sentiment might be detailed or just a broad admonishment, but you should have a lawyer look at what you’ve written to make sure you haven’t left any loopholes through which your beneficiaries can wiggle. If you write the clause correctly and the court upholds it, your will should effectively disinherit any beneficiary who files a legal challenge.

Exceptions to the Rule

Possible exceptions to the no-contest rule can vary by state. In some jurisdictions, the court won’t uphold your in terrorem clause if your beneficiary has solid legal grounds or “probable cause” for waging a will contest. The judge will only disinherit him if the challenge is frivolous or the legal equivalent of a temper tantrum because he feels slighted by the terms of your will. In some states, such as California, a beneficiary can file a motion with the court asking a judge to rule as to whether an action he’s considering taking would be a legal will contest.

A Successful Contest

Your in terrorem clause has no effect if your beneficiary files a will contest anyway and wins in court. For example, if he alleges that you were not of sound mind and if, in fact, you weren’t and he proves it, the court will invalidate your will. If this occurs, the entire document -- including its no-contest clause -- will be thrown out just as though you never left a will. Your estate would pass to your closest relatives in a prescribed order called intestate succession, which each state determines by statute. If the individual who challenged your will is someone who is in line to inherit from you through intestate succession, he could receive a bequest regardless of what you originally intended.

Empowering the Clause

Human nature being what it is, a no-contest clause will only work if it makes a beneficiary think twice. If you write, “I leave my son, Horace, only $1 for reasons he understands,” and you add an in terrorem clause, Horace is probably not going to worry too much about losing the dollar. On the other hand, if you leave him your house, while giving his siblings the bulk of your vast estate, Horace will have to consider whether he really wants to give up the house. If he challenges your will and loses, the house would revert to your estate and would pass to your other beneficiaries by the terms set in your will.


About the Author

Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.

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