Litigation over a will can be extremely difficult and expensive, and it can tear families apart. No rational person wants that kind of mess to be their legacy, and so many people who are planning their estates look for ways to reduce the possibility of probate litigation after they are gone.
Imposing a penalty for challengers
One tactic meant to help avoid litigation is known as a “no-contest” “penalty” or “in terrorem” clause. These terms refer to language in a will or trust that states that any beneficiary who challenges the estate plan in court will not receive any money from it.
The idea is to frighten beneficiaries away from the idea of a will contest or other litigation. But for better and worse, it doesn’t always work out that way.
Contesting a no-contest clause
To see why no-contest clauses can be more trouble than they’re worth, remember that will contests and other types of legal challenges to estate plans must meet a very high bar before they can be successful.
In the probate process, wills and other estate planning documents represent the last wishes of the deceased. So long as the documents appear to have been executed properly, courts won’t easily declare these documents invalid. But, if the challenger can provide evidence that the deceased was improperly influenced or was otherwise not in their right frame of mind when they created the document, then a court may decide that the document must be invalid.
Ironically, a no-contest clause can provide evidence that the deceased was not acting in their right mind or even that the estate plan is so grossly unfair that the court must declare it invalid. Indeed, some probate litigation attorneys may view a no-contest clause as an interesting challenge to overcome.
What can you do?
A well-drafted no-contest clause may be able to stand up to any challenge, but it could also lead to trouble.
So, what can you do if you want to keep your loved ones from fighting over your legacy when you’re gone?
One thing you can do is to talk to them about your estate plan while you’re alive, to make sure they know what to expect. It’s also a good idea to talk to your estate planning professional about other strategies and tactics for reducing the likelihood of probate litigation.