Earlier this year, we discussed how “no contest” clauses are raised as an issue in a Will Contest. We discussed how these clauses found in wills and trusts are written in to discourage beneficiaries from bringing a lawsuit at the risk of losing their inheritance or gift. We also outlined some of the history of Texas law on the topic, identifying the Texas Legislature’s efforts over the last few years to render these provisions unenforceable when a lawsuit is brought for good reason and with good intentions.
With this prior discussion as our background, a recent case that we took to trial in North Texas involved an in-depth look at this area of law. Our review of the relevant authority, and the public policy that helped shape it, reinforced how our attorneys view these provisions for our clients.
We often represent contestants to Wills. In fact, statistically, we probably represent more contestants than we do clients that support the Will and are offering it for probate. Sometimes these contestants have no inheritance to receive under the Will, and so they have nothing to lose if a “no contest” clause was enforced against them. If they win their contest, the Will’s terms have no meaning anyway.
However, some clients have a specific inheritance at risk. These clients have something at stake – a gift or inheritance under the Will or Trust. If they win, they receive more. If they lose, they might lose everything. For these clients, we tread very carefully to avoid the harsh result of forfeiture.
The good news is that even the harshest “no contest” clause probably doesn’t shut the door entirely. Imagine a “no contest” provision that prohibited a beneficiary “from even thinking about challenging this Will.” What good would our court system be if we didn’t at least offer this beneficiary a chance to explore (in good faith) a claim that she or he believed had some merit?
Good faith litigation is a real thing. Contesting parties can be both zealously determined and rational. To keep our clients within the safe harbor of “good faith” and “just cause,” we take measured and reasoned steps to gain vital information for them, so that they can evaluate their case as we move forward. The result, we believe, is that our clients maintain honest intentions and reasonable beliefs throughout the entire process.