Are “No-Contest” Clauses Effective?

Many Wills include a provision that attempts to discourage disputes about the Will, the testator’s capacity or the possibility that the testator was unduly influenced.  These “no-contest” clauses are sometimes called in terrorem clauses, and estate planners religiously use them to scare off potential probate litigation.

 

Almost every clause like this includes the phrase that if a beneficiary contests the Will, they forfeit their inheritance.  In legal terms, if there’s a latin phrase for it, you can usually assume that it’s because the idea is pretty old.  Discouraging lawsuits, from the grave no less, has been around for centuries.

 

But are these clauses a shield or a weapon?  Are they a lethal poison, or a paper tiger?  Is it really fair for courts to uphold them?  In truth, good public policy could probably land on either side of every one of these questions.  Fortunately, Texas law gives us some definitive answers to them.

 

In Texas, “no-contest” clauses are enforced, but narrowly.  That means, to even run the risk of violating the clause, the beneficiary’s conduct must come within the acts that the clause prohibits.  Even then, Texas courts have taken a pretty staunch position on Will Contests that are brought forward in good faith and for just cause.  In our experience, courts look for ways to avoid the forfeiture of an inheritance.

 

Only a few years ago, the Texas legislature got in on the act.  Section 64 of the Texas Probate Code was added in 2009.  According to the lawmakers that wrote it, the relatively new law wasn’t so much “new” as it was a confirmation of law that had been around for a pretty long time.  Now, Section 64 expressly makes a “no-contest” provision unenforceable against a contestant if their contest was brought forward and maintained in good faith and with just cause.

 

Forfeiture of an inheritance can certainly be a just and fair result.  But, it should not result in those cases where a legitimate and honest dispute exists.