Sometimes a client requests that a so-called no contest clause or interrorem clause be inserted within their estate planning documents, usually their wills and trusts. Within a will and trust, this language basically states that if a person contests the will or any part of it, or joins in the contest with any other person who may have contested, then their rights and any potential benefit they were to receive is forfeited.
If a person contests a will, and they were otherwise excluded, there is basically nothing for them to lose this action. Of course, if they are not successful in contesting, the court may award damages, including attorney’s fees to the victorious side in those situations. Normally, the allowance of attorney’s fees is discretionary, and unless the contestant does not have significant or substantial evidence to present to the court, they may be assessed counsel fees on both sides.
In order to prevent one from contesting a will, it is often desirable to establish a trust. In a will contest, the contestant merely needs to file a formal appearance in court with a written objection, and these documents are sufficient to warrant having a hearing.
However, if an objection is made and the assets are in a trust at the time of the death of the client, the mere objection may not be sufficient to cause the contest to be heard by the court, but rather, the contestant will have to hire counsel and file a formal complaint or a lawsuit against the trustee in an attempt to invalidate all or a portion of the trust.
This certainly causes additional expense and effort, as opposed to a will contest. In many cases, it is desirable to leave the person who may contest the will a sum of money, such as $5,000 or $10,000. If they were to contest the will, they risk forfeiting the allocated amount, which may likely cause the contestant to seriously consider whether they wish to file an objection or merely accept their bequest and allow the estate to be distributed as stated.
Sometimes, this language is also included in one’s health proxy and power of attorney, to eliminate a person from ever having the opportunity to make any comments, serve as the agent, or have any say in the decision-making authority of the person named.
The no contest clause may not be valid in all states, and it is important that the person drafting the documents knows whether the clause will be upheld in the state where they live or may reside in the future. There may also be an ancillary probate, which means that there may be assets in another state to be probated, thereby giving the potential contestant another “bite at the apple.” One state may have more lenient interpretations of a no contest clause, or it may not be valid at all, which may make it very important to have assets in that jurisdiction placed in a trust in order that the privacy of the clauses and distributions will be protected to the extent allowable.
Most of the no contest clauses that are written are due to some lack of relationship between a person and a proposed beneficiary or heir, or there may be an estrangement in the family that warrants the specific no contest language.
The no contest clause is a tool that gives direction to the beneficiary and the court that the decedent does not wish to leave a person funds for any reason. When preparing documents in this situation, it is necessary to have professional advice so that the language will be as bullet proof as possible, as most of the online or do-it-yourself forms do not include the appropriate language to omit a person. It should also be noted that in most states, a person may not omit their spouse. Most other beneficiaries may be omitted, however, as there is usually no law to allow a child or grandchild to be entitled to inherit.
Hyman G. Darling, Esq.