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The pros and cons of a no-contest clause

On Behalf of | Jun 8, 2023 | Estate Planning

Most people who draft a will take specific measures to guarantee that the executor will be able to carry out their final wishes without issues. The last thing you want is for family members to challenge your will because they feel they deserve a more significant portion of your estate and delay probate. Including a no-contest or in terrorem clause is one strategy for avoiding this situation.

Pros: Deterring family members from contesting a will

A no-contest clause discourages beneficiaries from contesting a will by penalizing challengers with disinheritance if they fail. The most common reasons why a beneficiary might contest a will includes execution errors, undue influence or lack of capacity.

Suppose one of your beneficiaries believes there was undue influence and files a claim against your will in court. Without enough proof, they risk losing everything.

Cons: A no-contest clause does not stop all challengers

There are some drawbacks to the no-contest clause. One is that it only applies to beneficiaries. If someone you have disinherited or excluded stands to gain financially from your estate, they may challenge your will. Because they are not beneficiaries, they do not have anything to disinherit if they fail at contesting your will. However, the court may award them a portion of the estate if they win.

If you are worried that your relatives would delay probate, a no-contest clause may not stop beneficiaries from contesting an executor.

Moreover, adding a no-contest clause may compel you to bequest a beneficiary more than what you think they deserve. This is because a no-contest clause is not always enough to stop challengers. For the beneficiary to have no reason to contest the will, testators often need to leave them with a sizable inheritance.

Although a no-contest clause may seem like a quick and straightforward solution to ensure smooth probate, it is not for everyone. It also needs to be well written. Otherwise, your heirs stand to lose their share of the inheritance if they try to fix your mistakes in court and fail. When drafting a will, it can help to have an estate planning attorney on your side to make sure it is flawless.