stocksnap_6d91714aaeMost people want to make sure that their children don’t fight over any inheritance that they might receive. One way to help disincentivize estate litigation is through a no-contest clause. Also known as Penalty Clauses, no-contest clauses are often included in Wills as a way to deter bickering and frivolous litigation between beneficiaries.

These clauses state that if anyone contests the Will or otherwise institutes court proceedings relating to the estate, then they will be penalized (usually by disinheritance). These provisions are generally enforceable, unless the person instituting the proceedings or contesting the Will had probable cause in doing so. Probable cause is an abstract concept, but usually applies if there is implied coercion in the Will drafting, or some kind of conflict of interest. 

An example is provided below to provide some context:

Jim is aging and becoming more forgetful, so he executes a Will. Shortly thereafter, Jim is diagnosed with dementia. He dies of a stroke one month after his diagnosis. After his funeral, his children gather and read his Will. They find that they are to split 1/3 of his estate, with 2/3 of his estate being distributed to Jim’s attorney. The Will has a no-contest clause, which disinherits any person who contests the Will. One of the children contests the Will anyway, claiming undue influence and/or fraud on the part of the attorney. The court finds in favor of the child. Because the court also found that the child had probable cause in bringing the Will contest action to the court, they will not enforce the no-contest clause, and the child will still benefit from his father’s estate.

Whether you want to make sure your Will is not contested, or to find out whether you should contest a Will, you will want to seek professional advice. You can reach us anytime at (435) 572-0807 or at office@mellinglaw.com.

 

 


 

This article is informational and does not contain legal advice. If you would like to ensure your property is distributed according to your wishes, please seek advice form an estate planning professional.

Content adapted from Mr. Melling’s book: The Utah Uniform Probate Code: A Quick-Reference Guide for Practitioners and Students.