No-contest clause

No-contest clause

A no-contest clause, also called an in terrorem clause, is a clause in a legal document, such as a contract or a will, that is designed to threaten someone, usually with litigation or criminal prosecution, into acting, refraining from action, or ceasing to act. The phrase is typically used to refer to a clause in a will that threatens to disinherit a beneficiary of the will if that beneficiary challenges the terms of the will in court. Many states[1] in the United States allow for a Will to have a no contest clause, so long as the person challenging the will doesn't have probable cause to do so.[2]

Contents

No-contest clause in wills

The Uniform Probate Code (UPC) §§ 2-517 and 3‑905 allow for no contest clauses so long as the person challenging the will doesn't have probable cause to do so.[2] The full wording is:

A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.
—UPC §§ 2-517 and 3‑905 [2]

The UPC has been adopted in several smaller states, including Alaska, Idaho, Montana, and New Mexico, but also by Florida, one of the larger states in population.[1]

Some states allow for "living probate" and "ante mortem" probate, which are statutory provisions which authorize testators to institute an adversary proceeding during their life to declare the validity of the will, in order to avoid later will contests.[citation needed]

No-contest clauses by state

California

In California, no-contest clauses are completely effective, and will divest any party that unsuccessfully contests a will containing such a clause.[citation needed] California's statutory scheme governing the enforceability of no-contest clauses was revised, effective January 1, 2010, with the enactment of new Prob.C. §§ 21310–21315. As of that date, the predecessor statutes are repealed.

Florida

In Florida no-contest clauses in wills are specifically unenforceable, irrespective of probable cause, pursuant to statute. See Fla. Stat. 732.517 (2009) which states:

A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.[3]

Massachusetts

Massachusetts General Laws allow for Penalty Clause for Contest language in wills. See M.G.L. Ch. 190B, Art. II, Sec. 2-517.

A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is enforceable.[4]

Nevada

Nevada law specifically directs the court to enforce no-contest clauses.[5] These statutes recognize that a beneficiary may, without penalty, seek enforcement of the will or trust, seek a judicial ruling as to the meaning of the will or trust. The statutes also recognize an exception where legal action challenging the validity of the document is "instituted in good faith and based on probable cause that would have led a reasonable person, properly informed and advised, to conclude that there was a substantial likelihood that the trust or other trust-related instrument was invalid."

New York

New York has rejected the "probable cause" defense to enforcement of such clauses. Such clauses are given full effect upon challenge. Some exceptions apply, e.g. election against the will by a minor, contest on ground of forgery or revocation by later Will.[6]

N.Y. EPTL specifically states:

A condition, designed to prevent a disposition from taking effect in case the will is contested by the beneficiary, is operative despite the presence or absence of probable cause for such contest, subject to [exceptions]
—N.Y. EPTL § 3-3.5 [6]

Texas

Texas allows for a no-contest clause to be challenged for probable cause and provided the action to challenge was made in good faith (Texas Probate Code, Chapter IV, Section 64).[7]

Virginia

Virginia has generally rejected the "probable cause" defense.[citation needed]

References

  1. ^ a b Cornell Law School website page on Uniform Probate Code. Accessed October 5, 2009.
  2. ^ a b c Uniform Probate Code (UPC) § 2-517. Penalty Clause for Contest, replicated at § 3‑905. Penalty Clause for Contest. Both found at University of Pennsylvania Law School website page on Uniform Probate Code. Accessed October 5, 2009.
  3. ^ Fla. Stat. 732.517 (2009).
  4. ^ http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter190B/ArticleII/Section2-517
  5. ^ See NRS 137.005 as to wills and NRS 163.00195 as to trusts.
  6. ^ a b N.Y. EPTL § 3-3.5 Conditions qualifying dispositions; conditions against contest; limitations thereon, found at New York state Assembly website, go to EPT Estates, Powers & Trusts. Accessed October 5, 2009.
  7. ^ http://www.statutes.legis.state.tx.us/Docs/PB/pdf/PB.IV.pdf



Wikimedia Foundation. 2010.

Игры ⚽ Поможем решить контрольную работу

Look at other dictionaries:

  • no-contest clause — A clause intended to keep a person from doing something or not doing something. In a will, a no contest clause is intended to keep beneficiaries of the will from challenging its terms. Such clauses usually state that if a beneficiary challenges… …   Law dictionary

  • no contest clause — n: a clause inserted in a will that causes a legacy to be forfeited if the legatee challenges the will by bringing a will contest Merriam Webster’s Dictionary of Law. Merriam Webster. 1996 …   Law dictionary

  • no contest clause — Provision in a will to the effect that the legacy or devise is given on condition that no action is taken to contest the will; and if such action is initiated, the legacy or devise is forfeited. See also non contestability clause …   Black's law dictionary

  • no contest clause — Provision in a will to the effect that the legacy or devise is given on condition that no action is taken to contest the will; and if such action is initiated, the legacy or devise is forfeited. See also non contestability clause …   Black's law dictionary

  • contest — con·test 1 /kən test/ vt: to dispute or challenge through legal procedures contest a will con·test 2 / kän ˌtest/ n: a challenge brought through formal or legal procedures boundary controversies or other contest s between states Felix… …   Law dictionary

  • contest — To assert a defense to an adverse claim in a court proceeding. To oppose, resist, or dispute the case made by a plaintiff or prosecutor. To strive to win or hold. To controvert, litigate, call in question, challenge. To defend, as a suit or other …   Black's law dictionary

  • contest — To assert a defense to an adverse claim in a court proceeding. To oppose, resist, or dispute the case made by a plaintiff or prosecutor. To strive to win or hold. To controvert, litigate, call in question, challenge. To defend, as a suit or other …   Black's law dictionary

  • contest — Noun: An attempt to defeat the probate of an instrument offered as a will, being inclusive of resistance to probate and an action or proceeding to set aside probate. 57 Am J1st Wills § 743; a technical term for a proceeding to cancel or defeat an …   Ballentine's law dictionary

  • Will contest — Wills, trusts and estates …   Wikipedia

  • will contest — n: a dispute or proceeding (as a trial) begun by one who objects to probate of a will on the ground that it is invalid see also no contest clause ◇ The party who contests the will has the burden of proof, and the personal representative of the… …   Law dictionary

Share the article and excerpts

Direct link
Do a right-click on the link above
and select “Copy Link”