No-contest clause

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Wills, trusts and estates

Part of the common law series

Wills

Legal history of wills Joint wills and mutual wills Will contract · Codicil Holographic will · Oral will

Sections Attestation clause Residuary clause Incorporation by reference

Contest Testamentary capacity Undue influence Insane delusion · Fraud No-contest clause

Property disposition Lapse and anti-lapse Ademption · Abatement Satisfaction of legacies Acts of independent significance Elective share · Pretermitted heir Wills and conflict of laws

Trusts

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Common types Bare · Discretionary Accumulation and Maintenance Interest in possession Charitable · Purpose · Incentive

Other types Protective · Spendthrift Life insurance · Remainder Life interest Reversionary interest Testamentary Honorary · Asset-protection Special needs (Supplemental Needs)

Governing doctrines Pour-over will Cy-près doctrine Trusts and conflict of laws

Estate administration

Intestacy · Testator · Probate Power of appointment Simultaneous death · Slayer rule Laughing heir · Advancement Disclaimer of interest · Inheritance tax

Related topics

Advance directive (Living will) Totten trust

Other common law areas

Contract · Tort · Property Criminal law · Evidence

v • d • e

A no-contest clause, also called an in terrorem clause, is a clause in a legal document, such as a contract or a will, that is designed to threaten someone, usually with litigation or criminal prosecution, into acting, refraining from action, or ceasing to act. The phrase is typically used to refer to a clause in a will that threatens to disinherit a beneficiary of the will if that beneficiary challenges the terms of the will in court. Many states^[1] allow for a Will to have a no contest clause, so long as the person challenging the will doesn't have probable cause to do challenge so.^[2]

No-contest clause in wills

The Uniform Probate Code (UPC) §§ 2-517 and 3‑905 allow for no contest clauses so long as the person challenging the will doesn't have probable cause to do so.^[2] The full wording is:

A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.

—UPC §§ 2-517 and 3‑905 ^[2]

The UPC has been adopted in several smaller states, including Alaska, Montana, and New Mexico, but also by Florida, one of the larger states in population.^[1]

Some states allow for "living probate" and "ante mortem" probate, which are statutory provisions which authorize testators to institute an adversary proceeding during their life to declare the validity of the will, in order to avoid later will contests.^{[citation needed]}

No-contest clauses by state

California

In California, no-contest clauses are completely effective, and will divest any party that unsuccessfully contests a will containing such a clause.^{[citation needed]}

New York

New York has rejected the "probable cause" defense to enforcement of such clauses. Such clauses are given full effect upon challenge. Some exceptions apply, e.g. election against the will by a minor, contest on ground of forgery or revocation by later Will.^[3]

N.Y. EPTL specifically states:

A condition, designed to prevent a disposition from taking effect in case the will is contested by the beneficiary, is operative despite the presence or absence of probable cause for such contest, subject to [exceptions]

—N.Y. EPTL § 3-3.5 ^[3]

Virginia

Virginia has generally rejected the "probable cause" defense.^{[citation needed]}

References

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