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Can a no-contest clause keep a will out of court?

On Behalf of | Dec 30, 2016 | Probate Litigation

For many people, a large part of the purpose of a will is to make sure that their estate is distributed the way that they want it to be distributed. Unfortunately, fights between surviving relatives over who was given more than their fair share or who was denied what they feel is their due can drag an estate into court. If successful, a challenge can prevent your original intentions from being carried out. Even if a challenge isn’t successful, it can take years to resolve and prevent your rightful heirs from moving forward.

Do you suspect that your relatives are likely to start fighting over the contents of your will the moment after you’re gone? One way to limit the potential for legal challenges to your will is to add a no-contest, or “forfeiture,” clause. This is a clause that says that an heir who challenges the will and loses gets nothing at all. If done right, this can make someone hesitate to gamble a sure thing against an uncertain legal decision in the future.

The clause only works if the heir has something of value to lose, so you have to make sure that you leave an heir that you suspect may be contentious just enough money or assets to entice him or her not to sue. If you leave him or her nothing at all, then there’s no incentive for the heir not to attack the will on all fronts.

It’s also important to note that while Pennsylvania law does allow no-contest clauses, they won’t be enforced if there was “probable cause” to contest the will. The law is vague about what exactly constitutes probable cause, it essentially means anything that a judge would find reasonably suspicious under the circumstances.

No-contest clauses are only one strategy that you can take to prevent your will from being challenged and your estate fragmented by relatives who aren’t happy with your end-of-life decisions. There are other ways to limit the possibility, including making use of trusts instead of wills and documenting your mental capacity at the time the will was executed.

If you suspect that there’s going to be family discord after your death, discuss the issue with your attorney. He or she can suggest ways to avoid inheritance disputes so that you get to choose what happens with your money and assets after you’re gone.

Source: FindLaw, “Who Can Challenge a Will?,” accessed Dec. 30, 2016