It can be hard to set aside a will even under ordinary circumstances: courts give deference to wills because (as their name implies), wills are supposed to represent the wishes of the testator. If you seek to set aside a will because you feel you did not receive what you are entitled to, you must be particularly careful if the will contains a “no-contest” clause. A no-contest clause states that if any person challenges the will and fails in the challenge, that person will lose his or her inheritance entirely. The Latin name of the no-contest clause—an in terrorem clause–indicates that such provisions originally were meant to frighten away any challenges to the will. Even now, these clauses are specifically written to stop individuals who think that they have been shortchanged by a will from taking legal action to have the will set aside. An unsuccessful challenge can result in your inheritance being redistributed to other heirs. Even in the absence of a no-contest clause, the cost of challenging a will can be substantial. No-contest clauses specifically discourage individuals from challenging wills because they are unhappy as to how much they have received. Of course, this threat works only if you stand to gain something from the will in the first place.
Good Faith Challenges
Even if a no-contest clause inspires a feeling of terror, you still may want to pursue a will challenge, and you may not suffer the consequences that you fear. The Uniform Probate Code, and the states that have adopted it, allow individuals to challenge wills that contain no-contest provisions if they have “probable cause” to pursue a challenge. Probable cause means that, at the time a challenge is filed, the person filing has good reason to believe that the will can be overturned. For instance, you may be able to show probable cause if you can prove that the contested will was made or altered under undue influence. Other states, including Florida and Indiana, simply refuse to enforce no-contest clauses. So, if you have a good faith challenge to a will and a substantial likelihood of success, a no-contest clause may not be a deterrent for trying to set the will aside. If you believe that you have been wronged and you are willing to put in the time and the money required, be sure to find an attorney who can guide and support you through this complex process.
Elliot Schlissel is an attorney licensed to practice in the State of New York. His law firm, with offices in Nassau County, Suffolk County and Queens County, practices in family law & divorce, criminal law, personal injury matters, bankruptcy, wills & trusts, and foreclosure defense.