While the number of wills being contested may sound small, this number doesn’t include the many wills not contested because of strategies used to discourage litigation. If your family includes people likely to battle over your estate plan, you’ll want to know about no-contest clauses. A recent article from Think Advisor, “How to ‘Bulletproof’ a Will With a No-Contest Clause,” explains how to protect your wishes.

Tens of thousands of estates are impacted by contested Wills annually, and even the closest families can find themselves fighting over inheritances. One way to prevent this is with no-contest clauses, also known as the in-terrorem clauses, placed in wills and trusts to discourage heirs from voiding their claims to any part of the overall estate if they challenge the will in court proceedings.

Estate battle reasons vary, from sibling rivalry to intergenerational power struggles. The outcome of using a no-contest clause depends on state statutes, evolving case law and how much the warring parties can or want to invest in estate litigation.

Encouraging discussion between all stakeholders in advance of the passing of the parent or grandparent can give time for everyone to work through any disagreements before courts become involved. However, even with the best of intentions, clear communication doesn’t always resolve the issues.

Almost every jurisdiction has addressed whether or not no-contest clauses can be enforced, either by law or by case law. For example, Vermont doesn’t have any laws about enforcement. Florida does not allow the use of no-contest clauses. Put another way, Florida does not enforce no-contest clauses. New York on the other hand does enforce no-contest clauses.

A no-contest clause is relatively simple. A no-contest clause is an article in your Will and/or trust that simply states that anyone that challenges your Will or trust loses whatever inheritance they were to receive from that Will or trust. So, a no-contest clause is sometimes used to dissuade a beneficiary who is being disinherited from contesting a Will or trust by leaving them a token bequest. The no-contest clause serves to dissuade a challenge, because if the beneficiary challenges and loses they also lose their token bequest. However, there are limitations to be aware of. No-contest clauses work only for named beneficiaries who have a claim in the Will or trust, and they must be given a sufficient interest under the will or trust for the no-contest clause to be useful. For example, leaving the daughter you wish to disinherit $100 may not be enough to discourage a Will contest, but a $10,000 bequest may do the trick. Someone who has been cut out of a will entirely has nothing to lose by taking family members to court for their perceived deserved inheritance, while someone who stands to inherit something, albeit a smaller amount than they would have wished, could lose everything if the no-contest clause is enforced.

Challengers who file actions because they believe someone unduly influenced the testator can be problematic. Few people understand how undue influence works in a legal setting. Undue influence can be found when a person makes bad or unfair choices because of an alleged wrongdoer’s behavior towards them, causing the victim to placate the person. However, proving undue influence is not easy.

There are strategies to overcome no-contest clauses, so estate plans must be prepared with these in mind. In some instances, estate administration is challenged, including actions over improper investments, or raising interpretations of ambiguities.

An estate planning attorney with experience will know how to use a no-contest clause and create an estate plan to stand up to challenges from dissatisfied family members or others who feel they have been treated unfairly.

Reference: Think Advisor (Jan. 16, 2025) “How to ‘Bulletproof’ a Will With a No-Contest Clause”