Should I Include a “No Contest’ Clause in My Will?

Many people worry about disgruntled relatives challenging their will after their death. As a method of discouraging this behavior and preventing unnecessary probate litigation, testators sometimes include a “no contest” clause in their will. What is this clause and is it effective?

What is a “No Contest” Clause?

The idea of a no contest clause has been around for hundreds of years. Basically, its inclusion means that if a beneficiary challenges the will, he or she will lose their inheritance. However, for many years courts have narrowly enforced this clause. Judges have been reluctant to strip beneficiaries of their inheritance if they contested a will.  To clarify enforcement, in 2009 Texas Legislature passed law that makes no contest unenforceable if the beneficiary contested the will in good faith and with just cause.

Is It Worth Inclusion?

The answer to that question is maybe. Some states have completely invalidated the no contest clause because they do not find them to be effective. Here are two examples where a no contest clause may not work out as the testator planned. First, Texas law says that a testator must have testamentary capacity or a sound mind to create his or her will. The one contesting the will can argue there is no way the testator could have been in sound mind if they left him or her out. It seems simplistic, but it is usually a good enough argument to start a lengthy litigation process.

A second scenario that can create unexpected legal disputes among surviving relatives can occur when the testator clearly explains why a certain relative is not getting a bigger piece of the inheritance. For example, a testator may include that the relative is a known drug addict. The disgruntled relative can use this accusation to claim the testator was not in his or her right mind. Secondly, the alleged drug addict could bring a slander or libel suit against the testator’s estate. Even if it seems a court is unlikely to side with the heir contesting the will, the situation can still lengthen the litigation process and cause valid beneficiaries to pay legal fees.

In theory no contest clauses should work. However, the law is vague about what constitutes valid cause for challenging a will. Therefore, it’s important that testators seek experienced legal counsel to protect their estate. Contact us for a free consultation.