The No-Contest Clause

When people set-up a will or a trust, they often worry that an unhappy relative or a disgruntled heir will contest their estate plan. These concerns are often justified. In fact, will and trust contests are one of the most litigated areas in estate planning.

To remedy contests to wills or trusts, both instruments usually contain a no-contest clause. A no-contest clause essentially disinherits anyone who challenges the validity of a will or a trust in court and loses in that litigation.

State law defines a "direct contest" to a will or trust as any accusation alleging that the person who wrote the instrument acted under fraud, menace, undue influence, mistake, misrepresentation or lack of capacity.

Many people wonder whether their wills or trusts can be contested. Both a will and a trust can be contested, but a will is far easier to contest than a trust. Because a will goes through a probate proceeding the entire process is public and anyone can find out about your estate. Assets are often frozen or held during probate, giving those that would want to contest a gift or distribution from a will, plenty of time to claim a right to your estate without hiring an attorney.

A living trust, on the other hand, is private and assets can usually be distributed immediately. Before a disgruntled relative could even find out what gifts were being made in the trust, the trustee may have already made distributions. An unhappy heir would have to hire an attorney to sue the trustee and each of the beneficiaries. This often discourages frivolous contests to a trust.