Including a "no-contest" or "in terrorem" provision in a last will and testament can be an effective way to avoid a contest of your will and ensure that, upon your death, your property is distributed according to your wishes. However, not every jurisdiction enforces no-contest clauses. And even in jurisdictions that enforce them, there may be exceptions to their enforcement. You should consult with an experienced estate planning attorney to consider including a no-contest provision in your will.
If you are like most people, it is not an easy decision to draft a last will and testament. But there are many benefits to be gained by having a will. A will allows you to:
- Designate someone you trust to administer your estate
- Provide instructions for paying debts and taxes
- Identify property you wish to distribute
- Resolve expectations of family members
- Make charitable contributions
In addition to these benefits, one of the most important reasons for deciding to have a will is to have the peace of mind of knowing that your property will be distributed according to your wishes.
But even in the closest of families, emotions can run high when it comes to probating the estate of a loved one, especially when the decedent's wishes for the distribution of property do not satisfy the expectations of family members. When family members are disappointed or feel treated unfairly in the will, they may decide to contest the will. If you suspect someone may contest your will, you should consider including a "no-contest" clause in your will to prevent a will contest.
A will contest is a legal objection to the validity of the will. Each state sets a period of time — usually within two years of the filing of the will — within which someone may contest the will. When a person files an objection to the will, a will contest is created. The person contesting the will has the burden to rebut the presumption that the will is valid by proving that the will does not represent the true intent of the testator.
Every state has requirements for filing a will in probate. Generally, for a will to be valid, it must include the following:
- Testator's signature
- Required number of witnesses
- Testamentary intent
As long as these requirements are met, the will is presumed to be a valid.
The person filing a will contest must have "standing" to contest the will. "Standing" simply means having the legal right to raise an issue in court. To have standing to contest a will, a person must have some financial interest in the estate that is being probated. This could include:
- Someone named in the will
- A blood relative or "heir" who is not named in the will
- An heir who did not receive what they expected to receive in the will
- Someone attacking the validity of the will
- Someone questioning how the will should be interpreted
- Someone presenting a subsequent instrument as the testator's intended will
When someone successfully contests the validity of a will, the will or any of its provisions may be deemed invalid, and the person is said to have died "intestate". When a person dies intestate, the estate is distributed according to the state's "intestacy" laws, which are the default rules applied when a testator dies without a will. Usually, a person only contests a will when they stand to inherit more from the intestacy laws than they do from the will. An experienced probate attorney can help you determine how much each of your heirs is likely to inherit through intestacy. This may help you decide how much to leave to an heir so as to remove the incentive to contest your will, even though they are disappointed with what they receive under the will.
To validly execute a last will and testament, the testator must be of sound mind and have sufficient testamentary capacity. This requires that the testator know and understand:
- The nature and extent of their property
- The "natural objects of their bounty" (their heirs or persons named in the will)
- The nature and effect of the act (of making a will)
The most common reason for contesting a will is that the testator lacked testamentary capacity at the time of the execution of the will and, therefore, did not intend for this to be their last will and testament. This could occur from any circumstances under which the testator is subject to:
- Insane delusion
- Undue influence
- Coercion or duress
In many states, when it can be shown that the proponent of the will stood in a confidential or fiduciary relationship with the testator and had the opportunity to influence the testator, a rebuttable presumption of undue influence arises. The burden then shifts to the proponent of the will to show that the disposition in the will is not demonstrably different from what would seem natural for someone disposing of their property and that the fiduciary asserted no undue influence over the testator in the execution of the will.
Often, someone may present to the court a subsequently executed instrument demonstrating that the testator intended to revoke the will that is now being probated and, instead, intended the subsequent instrument as their last will and testament. The question then becomes which will is valid as representing the final wishes of the testator.
If any of these claims are proven in a will contest, the will or any of its provisions may be deemed invalid, and the testator's estate will be distributed according to the default intestacy rules of the state. Therefore, to ensure that your property is distributed according to your wishes, it is best to avoid a will contest altogether.
Even in the closest of families, there is no way for a testator to be sure that someone will not be unhappy with what they or others receive under the will and, therefore, decide to contest the will. However, a court is obligated to dispose of property according to the intent of the testator, as stated in the will. And with limited exceptions, a testator is free to dispose of property as he or she wishes. Therefore, an effective way to avoid a will contest is for the testator to include in the will a "no-contest" or "in terrorem" provision.
A no-contest or in terrorem provision is a statement in the will in which the testator expressly provides that if anyone receiving a benefit under the will contests the will for any reason, they will automatically forfeit any benefit they otherwise would have received under the terms of the will. A court will strictly construe the terms of a no-contest provision, so such a provision should specify exactly what type of contest the testator wishes to prohibit. A "contest" could include:
- Claims questioning the validity of the will
- Claims seeking clarification on the meaning of language in the will
- Claims asserting that the will is not being administered correctly
- Claims presenting subsequent instruments as valid wills
Most jurisdictions recognize no-contest or in terrorem provisions as valid expressions of the testator's intent and, therefore, as enforceable. However, there are some jurisdictions that consider such provisions to be against public policy because they could prevent someone from proving to the court that the will being presented for probate does not actually represent the intent of the testator and, therefore, is invalid. An experienced estate planning attorney can advise which jurisdictions enforce no-contest clauses in wills and which ones do not.
In most jurisdictions that enforce no-contest provisions, the court will apply a "good faith" exception to the no-contest clause. For a good faith exception to apply, the contestant of the will must demonstrate that there was probable cause to believe that the will being probated did not represent the true intent of the testator as a result of:
- Undue influence
- Coercion or duress
- Valid subsequent instrument
Upon a good faith showing of probable cause, the court may determine that the no-contest clause does not apply to the contesting party. If, however, it is determined that the objecting party did not act in good faith in raising an objection or in submitting a subsequent instrument as a valid will that invalidates the existing will, then the court will enforce the no-contest provision against the person contesting the will.
Some jurisdictions may recognize a good faith exception to the application of a no-contest clause only for those contests that do not directly attack the validity of the will but, rather, merely raise issues that derive from the enforcement of a valid will. Often, these include:
- Claims asking the court how the will should be construed
- Claims seeking clarification for ambiguous language in a will
- Claims raising issues over how a will is being administered
- Claims asking the court to determine the nature of property or the status of beneficiaries in a will
However, a jurisdiction may not apply the good faith exception for claims that directly attack the validity of the existing will. Under this narrow rule, a no-contest clause would prevent someone from proving to the court that the testator was subjected to coercion, duress, fraud or undue influence when he or she executed the will.
Nevertheless, in those jurisdictions that enforce no-contest clauses but also apply a good faith exception to "indirect" contests, you may prevent the good faith exception from applying by expressly providing within the no-contest clause that even "indirect" claims questioning the construction, meaning or administration of the will can trigger the no-contest clause. Your estate planning attorney will help you craft a no-contest clause that is right for you based on your circumstances.
If you execute a will in which you suspect someone you name in the will, or someone who is entitled to inherit from you through intestacy, will object to the benefit that you provide to them, then you should consider including a no-contest or in terrorem clause in your will. Your attorney will advise you on whether no-contest clauses are enforced in your jurisdiction, and, if they are enforced, whether there may be an exception to their enforcement.