If a testator anticipates that disappointed beneficiaries may possibly contest his Will following his death, he may wish to include a “no contest” clause in his Will. 

A “no contest” clause is a provision that is inserted into a Will in an attempt to prevent or deter the contest of the Will or particular provisions of the Will.  Under the terms of such clauses, a beneficiary risks forfeiting some or all of her interest in the testator’s estate if she contests the Will.

Depending on the manner in which the “no contest” clause is drafted (as well as a number of other legal issues), the “no contest” clause may or may not be enforceable against the contesting beneficiary following the testator’s death.  In particular, the in terrorem rule may allow a court to invalidate a “no contest” clause when its sole purpose is to threaten or coerce the beneficiary.

However, if specific drafting techniques are utilized, the “no contest” clause may be enforceable and the application of the in terrorem rule avoided.  In this regard, among other factors, it is advisable to: (i) ensure that the “no contest” clause is not drafted so broadly as to attempt to usurp the jurisdiction of the courts with respect to all matters involving the estate; and (ii) specifically provide for what is to happen to the contesting beneficiary’s share of the estate in the event of her contestation of the Will.

As this is a rather complicated legal area, testators should seek legal advice in order to ensure that the “no contest” clauses that they wish to include in their Wills will be legally enforceable following their deaths.

Thanks

Laura