It is not uncommon for Wills to contain “No Contest Clauses” which provide for a beneficiary being disinherited from the Estate should they challenge the Will or any provisions thereof. These Clauses are not new and have been utilized by scriveners of Wills for many years. In the context of a Will Contest, whether this type of clause is enforceable is an issue which a party must take into account in deciding whether to challenge a Last Will and Testament. There are essentially two circumstances which must be considered by a party in deciding whether to challenge a Last Will and Testament if such a clause is present.
Obviously, if a person was completely written out of a Will which they now seek to challenge, the existence of the “No Contest Clause” in the Will would be of no consequence, as they were not destined to receive under this Will regardless. Thus, the presence of this Clause would be irrelevant to a person challenging the validity of the Will under these circumstances.
The other situation is if a party is to receive a Bequest under the Will which they believe is unfair. Under such circumstances, it is necessary for the party to consider the possibility of them forfeiting their Bequest under the “No Contest Clause” of the Will. Clearly, there is a sliding scale which may determine a party’s willingness to contest a Will based upon the value of their Bequest or the percentage of the Estate which they could forfeit should they lose the Will Contest. Certainly, the larger the percentage of the Estate which is at risk may require the party to consider whether to contest the Will, whereas, if the party is only receiving a token share then they would be more likely to challenge a Will.
When contesting the validity of a Last Will and Testament, if the Last Will and Testament is invalidated, then in that event, the No Contest Clause would likewise be stricken. Furthermore, should the parties reach a settlement, a No Contest Clause is likewise of no import. Finally, there is the possibility that the Court could find the Will enforceable, however, could rule that certain provisions of the Will are unenforceable in light of a legitimate dispute between the parties as to the validity of the Will. Under such circumstances, the Court may provide relief from the No Contest Clause. Obviously, this decision is highly technical and is subject to the Court’s discretion.
As such, if you are deciding to contest a Will and are facing the possibility of being disinherited by a “No Contest Clause”, it is strongly suggested that you speak with an attorney, such as the attorneys at Stark & Stark. We are happy to assist you and guide you through the process.