Don’t Allow a No Contest Clause to Intimidate You

No contest, or in terrorem, clauses are designed to discourage beneficiaries from contesting a decedent’s Will.  Basically, it states if a beneficiary attempts to contest a Will and loses, then they forfeit their right to whatever they were left in the original Will.

Do not let the no contest clause deter you from contesting a Will especially if you feel strongly that something is not “right”.  In Texas, the courts typically do not enforce these types of clauses if the complainant can show that their objection was made in good faith and the allegations are not frivolous or unsubstantiated.

There are several reasons why you may feel the Will to be invalid or suspicious. The courts generally recognize only a few arguments. These arguments include:

Lack of testamentary capacity: This means that the decedent did not understand what was being given to whom or, in some cases, did not realize they were signing a Will.

Due execution: There are certain things that must be present in order a have a Will be considered valid.  If some of these items are missing, this can be considered grounds for contesting the document.  Witness signatures would be a requirement.  If a Will is handwritten (holographic), then it must be written in the testator’s handwriting and signed by them.

Undue influence: This refers to the case where certain individuals have sway over the testator and influence the distribution of the assets of the estate.  Typically, the majority of the assets are bequeathed to that individual instead of being distributed among other family members or friends. This distribution of assets is typically the opposite of what the decedent may have indicated in the past verbally or in previous Wills.

One of the most important decisions you will be required to make when considering to contest a Will is who you will choose to represent your interests in court.  This is certainly not a case where you will want to represent yourself.  Probate and estate law is extremely complex and can involve tax and inheritance laws as well.

You would be best served by choosing an attorney who is not only well-versed in the applicable laws, but also one who is experienced in estate litigation.

Give us a call to schedule a consultation with one of our attorneys to discuss your concerns.

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