Protecting Your Estate Plan With a Broad No-Contest Clause

In one recent case from Michigan, that state’s Court of Appeals had to address a dispute about a man’s will. The man, Danial Span, had a daughter, Kayla. Span and Kayla’s mother divorced when she was 3 and, sometime later, he surrendered his parental rights and her stepfather adopted her in 2007. Two years prior, though, Span and the girl began forming a relationship. When he created his will in 2013, Span identified Kayla as his daughter, but left her nothing.

protecting-your-estate-plan-with-a-broad-no-contest-clause

Span’s 2013 will also contained a “no-contest” clause in it that, as with many such clauses, dictated that any person who challenged the will would forfeit their entire inheritance they were scheduled to receive under the terms of the will. In Span’s circumstance, the exact language of his no-contest clause stated that any beneficiary who “contests in any court any of the provisions of” the will would be treated as if she predeceased Span.

A week after Span signed his will, he died. Catherine Jock, Span’s personal representative (and the sole beneficiary of his estate) submitted the will for probate. The daughter challenged the will. The basis of her contest centered on Span’s mental capacity and the validity of the signature on the will. The personal representative, acting on behalf of the estate, tried to enforce the no-contest clause against the daughter. The trial court concluded that the personal representative could not enforce the no-contest clause against the daughter because the specific nature of the daughter’s challenge was one challenging the execution of the will and the testator’s capacity, and was not an attack on any provision in the will.

protecting-your-estate-plan-with-a-broad-no-contest-clause

Because the appeals court upheld the trial court’s ruling that went against the daughter on the substantial portion of her will contest, it did not need to reconsider the trail court’s ruling on the no-contest clause. Nevertheless, the case of Span’s will is a clear reminder of the need to approach no-contest clauses carefully. The language used in Span’s no-contest clause is fairly common. If your desire is only to prevent your potential beneficiaries from launching a challenge against a specific term (or terms) in your will, then such a clause could be beneficial.

However, contests that challenge a provision (or provisions) within a will are only one avenue for upsetting an estate plan. For some disgruntled people, their ends may be accomplished just as effectively by getting your plan invalidated in its entirety. If your goal is to protect yourself from both types of challenges, then, if no-contest clauses are enforceable in your state, you might benefit from using a clause with broader language than what Span had in his 2013 will. A experienced estate planning lawyer can help advise you about the whether no-contest clauses are enforceable in your state and, if they are, what degree of breadth would best match your planning goals.

Summary: For residents of states that allow no-contest clauses in estate plans, such provisions can offer a degree of protection against an unfair or frivolous court contest that would seek to undo your plan. Court cases have clarified whether or not the clauses are enforceable in a given state and, if they are allowed, how far they can go in protecting your plan. Depending on what your goals are, a broadly-worded no-contest clause may be able to give you the best protection against litigation by a disgruntled heir.