Are No Contest Clauses In Wills Enforceable?

Let’s say that for some reason, you feel that what you received through a will or through an inheritance was unfair, wrong, or that the person that made the will, may not have known what he or she was doing. You decide that you should challenge the will in court.

However, when reading the will, you notice something: There’s a clause that says that if you challenge the will, and you lose, you get nothing at all—not even what was actually left for you. Or else, they make you agree that to get what was left for you, that you will not ever challenge the will, and try to get more.

These are “all or nothing” provisions. The stakes are now high. Should you still challenge the will, even if you think you have grounds, knowing that you are risking everything in the event that the court doesn’t see things your way?

These Clauses are Not Enforceable

The answer is yes, because these kinds of no-contest clauses in wills are unenforceable, although in most states they are enforceable. Florida courts have frowned upon restricting someone’s right to challenge a will or a trust, saying that it is a vital part of the estate administration process.

And, because the law differs from state to state, you definitely want to confer with a probate attorney, in the event you are not located in Florida, or the deceased was not located in Florida, or the will was not made in Florida—there, you could have state law issues that interplay, that could make those provisions valid.

Why Include Unenforceable Clauses?

But why, knowing that Florida doesn’t enforce these kinds of “all or nothing” clauses, is it even in there—why would someone even put something in a will to deter challenges to the will, knowing that they can never legally be enforceable?

There are a lot of reasons. Some people include them betting that you will read it and opt not to challenge the will, and that you will just walk away. They just don’t anticipate you getting a good probate attorney to tell you that you can ignore that clause.

Some people include it, just in case—they may creatively word it, and hope that an attorney somewhere can argue to a court why their clause should be enforceable.

Some will include it, knowing it won’t be enforced, but as a statement to their beneficiaries of how badly the deceased didn’t want anybody fighting over their estate or what was left to the beneficiaries.

Of course, this doesn’t mean you should ever initiate a frivolous challenge to a will. But challenges that are valid, and which may have merit, can be brought without penalty.

Do you feel that you were unfairly left out of a will, or estate documents? We can help you see if you have a valid challenge to the will. The West Palm Beach estate planning lawyers at the Law Offices of Larry E. Bray is ready to help.

Sources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.517.html

advance.lexis.com/GoToContentView?requestid=2569ccec-f204-ccf8-c0f6-3061df1a869a&crid=4021f9dc-2f13-0040-07cb-e9714a5f4b5b