No-contest clause
Encyclopedia
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
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.
(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. The full wording is:
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.
Some states allow for "living probate" and "ante mortem" probate, which are statutory provisions which authorize testator
s to institute an adversary proceeding during their life to declare the validity of the will
, in order to avoid later will contests.
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 As of that date, the predecessor statutes are repealed.
, contest on ground of forgery or revocation by later Will.
N.Y. EPTL specifically states:
In terrorem
In terrorem, Latin for "in [order to] frighten," is a legal term used to describe a warning, usually one given in hope of compelling someone to act without resorting to a lawsuit or criminal prosecution...
clause, is a clause in a legal document, such as a contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
or a will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
, 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
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
. Many states
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
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
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
to do so.
No-contest clause in wills
The Uniform Probate CodeUniform Probate Code
The Uniform Probate Code is a uniform act drafted by National Conference of Commissioners on Uniform State Laws governing inheritance and the decedents' estates in the United States...
(UPC) §§ 2-517 and 3‑905 allow for no contest clauses so long as the person challenging the will doesn't have probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
to do so. The full wording is:
The UPC has been adopted in several smaller states
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, including Alaska
Alaska
Alaska is the largest state in the United States by area. It is situated in the northwest extremity of the North American continent, with Canada to the east, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia further west across the Bering Strait...
, Idaho, Montana
Montana
Montana is a state in the Western United States. The western third of Montana contains numerous mountain ranges. Smaller, "island ranges" are found in the central third of the state, for a total of 77 named ranges of the Rocky Mountains. This geographical fact is reflected in the state's name,...
, and New Mexico
New Mexico
New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...
, but also by Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
, one of the larger states in population.
Some states allow for "living probate" and "ante mortem" probate, which are statutory provisions which authorize testator
Testator
A testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death. It is any "person who makes a will."-Related terms:...
s to institute an adversary proceeding during their life to declare the validity of the will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
, in order to avoid later will contests.
California
In California, no-contest clauses are completely effective, and will divest any party that unsuccessfully contests a will containing such a clause.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:Massachusetts
Massachusetts General Laws allow for Penalty Clause for Contest language in wills. See M.G.L. Ch. 190B, Art. II, Sec. 2-517.Nevada
Nevada law specifically directs the court to enforce no-contest clauses. 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 minorMinor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
, contest on ground of forgery or revocation by later Will.
N.Y. EPTL specifically states: