No-Contest Clauses in Wills and Trusts

What is the process of contesting a will or living trust?

A last will and testament communicates your wishes regarding the distribution of your property after your death. 

A living trust holds your assets during your lifetime and transfers to your chosen beneficiaries at your death by the person you have designated as your “successor trustee."

So what happens if someone wants to contest a will or trust?

Contesting a will requires that a beneficiary file a formal legal challenge against the validity of the will. 

• A person must have standing to bring a will contest, which means they must have a financial interest in the estate, usually as a named beneficiary or someone who is entitled to inherit based on existing law.
• Grounds for a will contest may focus on the testator's capacity. This means alleging that they weren’t of sound mind when the document was executed. 
• Grounds may also involve external forces. These include undue influence, fraud, or duress. All of these allege that someone forced the testator's hand, so to speak, in drawing up the will.
• A will contest may seek to present a newer version of the document, alleging that it is the valid one.
• Challenges to the validity of a trust are similar in nature and generally call into question whether the trust accurately reflects the trust creator's wishes. As with a will, duress, fraud, undue influence, and even ambiguity in the trust's terms may be alleged.

The process for disputing a will or trust can add additional costs for the estate and less inheritance for beneficiaries. And since we're talking about court processes, this can take quite a bit of time, sometimes even years to sort out.

What does a no-contest clause in a will do?

A no-contest clause, also called an "in terrorem" clause, applies to wills or trusts. It states that beneficiaries who challenge the document lose their full inheritance. The clause stops court contests through this threat.

A sample no-contest clause in a will looks something like this:

"Notwithstanding anything herein to the contrary, if any beneficiary contests the terms of this Will, including, without limitation, filing a contest of admission of this Will to probate under [applicable section of the state Probate Code], that beneficiary shall not be entitled to any property under the terms of this Will, and for all purposes of this Will, that beneficiary shall then be deemed to have predeceased me."

A no-contest clause in a trust would contain similar language, but your state may have specific requirements. It's always best to consult a professional when incorporating legal language into your will or trust.

What actions trigger vs. don't trigger the no-contest clause in a will

Not every legal action related to a last will or trust activates a no-contest clause. The distinction can help you set realistic expectations about what protection these clauses actually provide.

Actions that typically trigger forfeiture include:

• Filing a formal will contest in probate court
• Challenging the testator's mental capacity to make a will
• Alleging undue influence over the testator
• Claiming fraud or forgery in the will's execution
• Seeking to invalidate specific provisions or the entire document

Actions that generally don't trigger the clause include:

• Requesting the court interpret unclear or ambiguous language
• Filing creditor claims against the estate
• Challenging the executor's actions, fees, or accounting
• Bringing construction proceedings to clarify the testator's intent
• Objecting to the executor's appointment on administrative grounds

The exact scope depends on how broadly or narrowly your no-contest clause is drafted. Some clauses are written to cover only direct validity challenges, while others attempt to penalize any litigation involving the estate. Courts generally interpret these clauses strictly, so precise language matters significantly.

What are the pros and cons of no-contest clauses?

Before adding a no-contest clause to your estate plan, consider these tradeoffs:

• Pro. No-contest clauses often effectively deter beneficiaries from bringing a legal challenge to the will.
• Con. If there actually were any errors in the will or trust, the existence of the no-contest clause leaves no recourse for that beneficiary.

What are the key limitations to a no-contest clause?

A no-contest clause doesn't automatically mean there will be no issues or disagreements over the estate. Keep these limitations in mind:

• Probable cause exceptions. Some states allow a beneficiary to bring a will contest even with a no-contest clause, as long as they have probable cause to do so.
• State enforcement varies. Some states, such as Florida, will not enforce no-contest clauses at all.
• Non-beneficiaries aren't covered. A person omitted from the will who brings a contest has no fear of losing an inheritance—they simply aren't covered by the clause.

What is the state-by-state enforceability of a no-contest clause?

As no-contest clauses are governed by state law, their effectiveness depends entirely on where your estate will be probated. States generally fall into three categories:

1. States that fully enforce no-contest clauses. Many states, including Texas, Nevada, and Arizona, enforce these clauses strictly. If a beneficiary files a contest in these states, they lose their inheritance regardless of whether their challenge had merit.

2. States with probable cause exceptions. California, New York, New Jersey, and several other states take a middle-ground approach. They enforce no-contest clauses but allow beneficiaries to challenge a will without penalty if they had "probable cause" to believe their contest was valid. This protects beneficiaries who have legitimate evidence of problems like fraud or undue influence.

3. States that don't enforce no-contest clauses. Florida and Indiana refuse to enforce these clauses as a matter of public policy. In these states, including a no-contest clause in your will won't deter anyone because courts simply won't honor the forfeiture penalty.

If you own property in multiple states or might relocate before your death, discuss with an attorney how different state laws could affect your estate plan's effectiveness.

What qualifies as probable cause

Some states recognize the probable cause exception, so a beneficiary can challenge a will in those states. They won't lose their inheritance if they have a reasonable belief stemming from actual evidence that shows the will is invalid. This isn't just a hunch or family suspicion; it requires facts that would lead a reasonable person to question the will's validity.

Common situations that typically meet the probable cause threshold include:

• Medical records documenting cognitive decline or dementia around the time the will was signed
• Evidence that someone isolated the testator from family and controlled their decisions
• Witness testimony suggesting the testator didn't understand what they were signing
• Signs of forgery or improper execution of the document

The practical effect of probable cause exceptions is that beneficiaries with legitimate concerns and supporting evidence can pursue a contest without automatic forfeiture. However, if a court determines the contest lacked probable cause, the beneficiary still loses their inheritance. This creates a meaningful deterrent against frivolous challenges while preserving access to the courts for genuine disputes.

What are some alternative and complementary strategies to no-contest wills?

No-contest clauses aren't your only option for preventing will disputes, which are surging amid the Great Wealth Transfer. Depending on your family situation, the following alternative or complementary approaches may either provide additional protection or work better for your circumstances:

1. Use a revocable living trust. Assets held in a trust pass outside of probate, making them harder to contest than a will. Trust contests are possible but less common and typically more difficult for challengers to pursue.

2. Make lifetime gifts. Transferring assets to beneficiaries while you're alive reduces the estate subject to dispute and demonstrates your intentions clearly. Plus, recipients who've already received gifts may be less likely to contest what remains.

3. Create an explanation letter or video. Document your reasoning for your estate plan decisions. While not legally binding, a clear explanation of why you divided assets the way you did can help family members understand your wishes and reduce feelings of being slighted.

4. Hold family meetings. Discus your estate plan with beneficiaries while you're alive to eliminate surprises and give family members a chance to ask questions or voice concerns before it's too late. 

5. Include a mediation clause. This clause requires any disputes to go through mediation before litigation. This can resolve conflicts faster, more privately, and at lower cost than court battles, preserving both relationships and estate assets.

These strategies work well alongside no-contest clauses or as standalone approaches. An estate planning attorney can help you determine which combination makes the most sense for your family dynamics and goals.

Strategic considerations: Leaving enough to deter

A no-contest clause only works if the beneficiary has something meaningful to lose. If you leave someone a nominal amount like the proverbial $1, the clause becomes toothless, because that beneficiary has essentially nothing at stake by contesting the will.

While there's no magic number, the amount should be significant relative to both your total estate and what that person might hope to gain through a successful contest.

Some estate planners use a "carrot" approach. This strategy means that in your will, you would leave a smaller but still meaningful inheritance to a potentially contentious beneficiary while directing the bulk of assets elsewhere. This gives that beneficiary something valuable to protect, making the no-contest clause an effective deterrent. An estate planning attorney can help you determine the right balance for your specific family dynamics and estate size.

Ask an estate planning attorney

There can be many strategic decisions to make along the way if you want to avoid will or trust contests later.

Most people probably don't have to worry about whether someone is likely to contest their will or trust once they're gone, but if you have reason to believe you do and are thinking about including a no-contest clause in your will, it’s more important than ever to make sure your wishes are absolutely clear in your estate documents. 

Do yourself, your estate, and your loved ones a favor and consult an estate planning attorney for advice. No-contest clauses can be extremely effective, but you need to be sure they are drawn up correctly in order for them to do their jobs well.

LegalZoom can put you in touch with an estate planning attorney who can answer your questions about wills and trusts when you sign up for the personal legal plan. With the personal legal plan, you'll receive unlimited 30-minute phone consultations with an attorney on new legal matters, tax advice, and more, all at an affordable cost.

Michelle Kaminsky, Esq., contributed to this article.