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Can a No-Contest Clause Prevent Heirs from Challenging a Will or Trust?

Posted by Chris Peterson | Aug 21, 2015 | 0 Comments

Can a No-Contest Clause Prevent Heirs from Challenging a Will or Trust?

Can a No-Contest Clause Prevent Heirs from Challenging a Will or Trust?When you create your will or trust, it is useful to keep in mind that at some point it may be challenged. Contrary to how such challenges are usually depicted in the movies, they are not always done out of greed and avarice, and some individuals have legitimate concerns. If you are considering adding a no-contest clause to a will or trust, it may be in your best interests to work with a Bryan estate lawyer who can help ensure that the instrument is legally sound.

When a Will or Trust Is Challenged

There is probably no such thing as an unassailable legal document. If a person is determined to find a means by which to challenge a will or trust, they are most likely going to find a way. The challenge can even come from outside the wording or implementation of the document. Often such challenges are brought because of the relationship of the heir apparent to the testator. One method that is at times used to thwart such a challenge from the outset is to add a no-contest clause. Such a proviso can look like this:

“Should a beneficiary named in this will file a challenge to it, with the intention of having the instrument declared void, or seeks in another way to nullify any aspect of the will, this individual's right of inheritance as so established shall be considered as though they predeceased the execution of this will.”

Do No-Contest Clauses Work in Practice?

No-contest clauses function primarily to discourage beneficiaries from challenging the will or trust. In practice they do not always work very well, especially for a person who has been excluded from the will. Quite obviously, if a would-be heir is not included in the will or trust, threatening them with exclusion isn't going to affect them one way or the other. As for those who are named, but who, perhaps, feel that their share of the estate is not fair or appropriate, such a clause could work to harden their resolve.

Indeed, Texas laws now function adverse to such clauses if a challenge that is brought is valid. As of 2009 Texas courts will not enforce a no-contest clause if a beneficiary files a claim that is brought in good faith and that has probable cause. The reasoning for this is that many elderly individuals are taken advantage of. A very common practice is to befriend an elderly person who has money, and then coerce him or her to change a will or trust in favor of the new “friend.”

Should You Bother to Include a No-Contest Clause?

Unless you have a beneficiary whom you know is likely to be dissolute or will challenge your wishes out of greed, you probably don't need a no-contest clause added to a trust or will. That said, every person's situation is unique, and your Bryan estate attorney will try to give you the most sound advice on this matter. If you have questions or would like to set up your trust or will, call Peterson Law Group today at 979-703-7014 or 936-337-4681.

About the Author

Chris Peterson

Chris Peterson is the owner of Peterson Law Group. He practices primarily in the areas of wills, trusts and estate planning; probate and trust administration; elder law; and business law. Chris is also the owner of Brazos 1031 Exchange Company.


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