No-contest clauses and what they actually do
A clause designed to make challenging a will risky, why it deters more claims than it defeats, and the question to ask about your own situation.
A no-contest clause, sometimes called an in terrorem clause, states that a beneficiary who challenges the document forfeits what it leaves them. Its purpose is deterrence, and it deters very effectively, including in situations where it would not actually have applied.
Why it deters more than it defeats
How these clauses are treated differs considerably between states. Some enforce them strictly, some limit enforcement where a challenge is brought in good faith and with probable cause, and some restrict them further. What amounts to a contest that triggers the clause is itself frequently disputed.
So the clause creates a genuine risk, but it is a risk whose size depends entirely on where you are and on what you are actually challenging. People routinely read one and conclude the matter is closed, which is the outcome the drafter wanted.
The arithmetic that matters
The clause has most force when you have been left something substantial. Risking a meaningful bequest to pursue a larger one is a real decision with a real downside.
It has least force when you have been left nothing or close to nothing. If the document gives you almost nothing, a clause forfeiting almost nothing changes very little, and that is frequently the situation in the disputes where undue influence is alleged.
Questions to ask a lawyer about it
- Is there a no-contest clause in the document at all?
- How is that kind of clause treated in this state?
- Would what I want to do actually count as a contest under it?
- Is there an exception where a challenge is brought in good faith, and would that apply?
- Given what I stand to lose under the clause against what I might gain, does this change the recommendation?
General information, not legal advice. Whether a particular clause is enforceable against a particular challenge is a question for a lawyer admitted in the relevant state.