surface, a no contest clause says that if a person who would otherwise receive
benefits under a Will or Trust will forfeit those benefits if he or she takes
certain actions. But it is more complicated than that.
only takes effect if the contestant loses.
For example, if I contend that my father's Will which disinherits me is
a forgery, I am not disinherited under the no contest clause if I prove that my
father's purported signature was really a forgery.
contest clauses cause a forfeiture when enforced, most states limit their
enforceability. For example, a state
statute might say that a no contest clause will not be enforceable to the
extent it defines a contest as a challenge to discretionary actions of a
Trustee or Executor.
But what of
other beneficiary actions such as filing a Creditor's claim, or couching a
contest as a request to interpret an instrument? In these instances, the
relevant state's statutes must be examined to determine whether or not the
clause is enforceable.
What if a
Will or Trust has a no contest clause and an amendment to the Trust or a codicil
to the Will (which amendment or codicil itself does not contain a no contest
clause) is challenged? Even though the
amendment or codicil may incorporate by reference the no contest clause in the
Trust or Will, state law must be reviewed to see if the no contest clause will
not be enforced on the ground that the contested instrument doesn't contain the
What of a
Husband who has his own trust who wants to discourage his Wife from claiming a
community property interest in his Trust.
He may wish to craft a no contest clause which includes in the definition
of contest any attempt by his Wife to claim a community property interest in
the assets of his Trust. His intent is
to avoid double dipping. He doesn't want
his Wife to get the benefits under the Will or Trust and in addition to take a
community property interest.
If an heir (a
person who would inherit in the absence of a Will or Trust) is disinherited in
the Will or Trust itself, he or she will not be deterred by the no contest
clause. Why? Because the heir has nothing to lose.
is to make a gift to the heir (for example-one of the children) that is large
enough to cause the heir to worry that the risk of losing what he or she has
been given is simply not worth it. It
angers some people that they have to make a gift to someone they wish to
disinherit in order to discourage that person from contesting, but sometimes
the ability to prevent a contest and the attorneys fees it would generate on
both sides will cause the Testator to make such gift, distasteful as it may be.
Spiro is a Beverly Hills attorney who is a certified specialist in
Taxation and in Estate Planning, Probate and Trust Law. He holds a Masters
Degree in Taxation from Golden Gate University and has taught tax and estate
planning courses at UCLA and USC. He has been named as Super Lawyer by
Los Angeles Magazine.
Access Randy Spiro's
Martindale-Hubbell profile on www.martindale.com