The no-contest clause creates a strong incentive not to challenge a will, unless a person is certain they can win. However, it isn’t always that simple, according to The Press-Enterprise in "The pros and cons of the no-contest clause."
Sometimes it is possible to foresee that a family member or other person may not be satisfied with the inheritance planned for them through a will. For example a child who receives a smaller portion of a parent's estate than other children, might not be happy about it.
An unhappy person seeking to challenge the validity of the will is always a possibility. One way to help prevent that is through the use of a no-contest clause.
These clauses state that anyone who challenges the validity of a will should receive nothing under that will. What this means in practice is that a challenger who loses would receive nothing.
Over the years, courts have carved out an important exception to the applicability of no-contest clauses.
If the person challenging the will had probable cause for the challenge, then the court will not apply the no-contest clause, even if the challenge fails.
This allows people to bring potentially meritorious claims to the attention of the court. The no-contest clause will still be applied, when the court finds that the contest to the will was brought completely without cause.
No-contest clauses are not perfect. However, they remain a useful tool to help prevent challenges to wills.
An estate planning attorney can advise you in creating an estate plan that meets your unique circumstances and may include a no-contest clause or other legal way to reduce the risk of family fights over the estate.
Reference: The Press-Enterprise (Aug. 5, 2017) "The pros and cons of the no-contest clause."
