What is a "no-contest" clause in a will?

Imagine you're named in your grandmother's will, but there's a line you don't quite understand, something about losing your inheritance if you challenge the will in court. Is that even legal? Can a will really punish you for qestioning it?

That clause doesn't always mean what people think it means. Here's a plain-English explanation of what a no-contest clause in a will is, and why it isn't enforced the same way everywhere.

What Is a No-Contest Clause?

A no-contest clause, sometimes called an "in terrorem" clause (Latin for "in fear"), is a provision in a will that discourages beneficiaries from challenging it. In plain English, it says something like: "If you challenge this will and you lose, you give up whatever I left you."

The reasoning behind it is simple. Someone writing a will wants to discourage family disputes after they're gone, so they add a consequence for challenging their wishes, hoping it helps keep the peace.

Does a No-Contest Clause Always Apply?

Not automatically, and not the same way in every case. There's an important nuance: enforceability varies significantly by state.

Some states enforce it strictly

In certain states, if you challenge the will and lose, you lose your inheritance, with no exceptions built in.

Other states allow exceptions

Other states take a more flexible approach. They may decline to enforce the clause if the person challenging the will had a good-faith reason to do so, even if the challenge ultimately doesn't succeed. This is often called a probable cause exception.

So the exact same clause, written into the exact same kind of will, can play out very differently depending on where you live.

Who Does a No-Contest Clause Actually Affect?

A no-contest clause generally only carries weight if you're already named as a beneficiary in the will. If you're not receiving anything under the will, you have nothing to lose, and the clause has nothing to hold over you.

This is actually why some no-contest clauses include a small gift to a person who might otherwise be inclined to challenge the will. By naming them as a beneficiary, even for a modest amount, the will gives that person something to lose if they contest it and fail.

What Is a No-Contest Clause in a Will? The Short Answer

A no-contest clause is a provision saying that if a beneficiary formally challenges the will and doesn't succeed, they may forfeit what they were going to receive. It's designed to discourage disputes. Whether it's enforced, and how strictly, depends heavily on your state's law and the specific circumstances of the challenge.

Frequently Asked Questions

Are no-contest clauses enforceable?It depends on the state. Some states enforce them strictly, while others include exceptions, such as when the person challenging the will had a good-faith basis for doing so.

What happens if you lose a will contest with a no-contest clause?In states that enforce the clause strictly, losing the challenge can mean forfeiting the inheritance named in the will. In states with exceptions, the outcome can depend on whether the challenge was brought in good faith.

Does a no-contest clause stop all challenges to a will?Not necessarily. It's designed to discourage challenges by attaching a consequence, but it doesn't prevent someone from filing a challenge, and it doesn't always result in forfeiture depending on the state and the circumstances.

Should I include a no-contest clause in my will?That depends on your goals, your family situation, and your state's law. An estate planning attorney can help you weigh whether this type of provision fits your circumstances.

Does a no-contest clause apply to someone who isn't named in the will?Generally, no. The clause typically only has an effect on people who are already set to receive something under the will, since they're the ones with something to lose.

The Bottom Line

A no-contest clause is meant to discourage will disputes by attaching a consequence to an unsuccessful challenge. But its effect isn't uniform. Some states enforce it strictly, others build in exceptions, and it generally only matters to people who are already named as beneficiaries.

If you're a beneficiary looking at one of these clauses and wondering what it means for you, or you're considering including one in your own will, this is exactly the kind of detail where the facts and your state's law matter enormously.

Talk to an Estate Planning Attorney

A single clause like this can carry a lot of weight, and it's not something to guess about.

If you'd like to understand how the law may apply to your situation, the attorneys at Woodbury & Ybarra are experienced and specialize in these type of issues. Mention this article to receive your free consultation.

Visit www.woodburyandybarra.com or call 801-203-0297 to schedule your consultation today.

This article is for educational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.