No-Contest Clause Options to Avoid Will Challenges

Wouldn’t it be great if, when you’re making a will, you could include some kind of language or provisions, that deter anybody from challenging your will?

No-Contest Clauses

In many states, so-called “no-contest” clauses can be written into wills.

This is language that punishes–and often completely disinherits–anybody who unsuccessfully challenges a will in probate court.

By having such a significant penalty for losing a challenge, the logic goes, people will be less inclined to challenge the will, unless they have absolutely solid grounds for doing so.

Not in Florida

But in Florida, this kind of language is not allowable. Any language in a will or in a trust that seeks to punish someone or disinherit them if their will contest fails, is not enforceable.

While courts don’t want frivolous challenges in probate court, they also don’t want to discourage people from giving access to courts, or from bringing good faith claims where they are warranted.

Other Options

So if you’re drafting a will, and you cannot include such a clause, what can you do to discourage someone from challenging your will?

One thing that you can do, and which is enforceable, is a mandatory mediation clause.

While forcing mediation as a prerequisite to filing a lawsuit doesn’t prevent someone from bringing a claim, it does allow grievances or disputes to be heard, and give them a chance to be settled, before a full blown will challenge in probate court is filed. It also gives family a “heads up” that a challenge is being made, before an actual probate court case is filed.

Another option is to avoid completely disinheriting someone. Instead, you can leave them a smaller inheritance, or something that is considered nominal or token in nature. By leaving just a little to someone, it makes it harder for that person to complain that you didn’t know what you were doing when you made the will, or that some kind of mistake was made by the disinheritance.

Another strategy is to leave your assets in a trust. While trusts and their assets can still be challenged, it is much harder to do so, and trust assets don’t go through the probate process. The same can be said for other vehicles that avoid probate, like payable on death or transfer on death clauses.

Including No Contest Clauses Anyway

Although not legally enforceable, there is nothing illegal about including these no contest clauses in your will. At worst, a court will ignore and refuse to enforce that part of the will, but inclusion won’t invalidate anything else in your will.

Some people do include them, even knowing they cannot be enforced, in hopes of discouraging anybody from challenging their will. Many people may not get good probate law advice, and thus, might see these clauses, and shy away from challenging the will.

If you want to challenge a will, and see such a clause, do not be discouraged. Sometimes wills are drafted in states where such clauses are enforceable, so they show up in Florida probate cases.

Call the West Palm Beach probate law attorneys at The Law Offices of Larry E. Bray today if you have questions about challenging a  will or trust in probate court.

Source:

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