It is not uncommon for drafters of Wills to include a “no-contest clause” in a decedent’s Last Will and Testament. The purpose of the “no-contest clause” is to provide for the disinheritance of an heir to the estate should they challenge the validity of the decedent’s Last Will and Testament. While a “no-contest clause” could ultimately have this effect, it can likewise be defeated during a challenge to a Will. Further, if the litigation is settled before trial, there would typically be an agreement between the parties that the “no-contest clause” would not apply.

The manner in which an heir to an estate may challenge the validity of a “no-contest clause” is typically in the same fashion that he/she would challenge the validity of the decedent’s Last Will and Testament. This is discussed in detail in many of my other blogs and involves challenges related to the decedent’s lack of capacity to execute a Last Will and Testament, or the assertion that undue influence was exerted by a third party over the decedent, thereby resulting in the disputed Last Will and Testament. There are other technical ways in which a Last Will and Testament may be challenged; however, these are the two primary grounds that appear during a Will contest.

If a “no-contest clause” exists within a Last Will and Testament which a beneficiary under the Will may seek to challenge, this heir should consider their potential bequest under the current Last Will and Testament compared to what they might receive should their challenge prove successful. Obviously, the greater the disparity between what an heir is currently receiving under the disputed Last Will and Testament, as compared to if that document is invalidated, plays a major role in deciding whether to challenge the Last Will and Testament. On the other hand, if the difference in what a beneficiary might receive should the Will contest prove successful is small, it may make sense to forego a challenge to the decedent’s Last Will and Testament.

In general, a “no-contest clause” is enforced pursuant to an order entered by the court disinheriting a beneficiary of the estate. As such, the enforcement of a “no-contest clause” would generally be after the conclusion of the litigation via motion brought by the executor of the estate. On the other hand, if the challenge to the Will is successful, the no-contest clause would be voided along with the Will. Further, should the parties settle the litigation without a trial, then in that event, the “no-contest clause” is typically not applicable.

As such, while a “no-contest clause” appears to be a daunting provision within a Last Will and Testament, its presence may have little effect on the decision to file a Will contest, or on the other hand, could be completely dispositive of this decision based the potential benefits verse the potential pitfalls. It is vital that when a party is considering challenging a Last Will and Testament that they review the impact of the “no-contest clause” and how it may ultimately affect them at the conclusion of the matter. Competent counsel should be able to help a beneficiary make a sound decision in this regard.