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Sunday, April 16, 2017

Worried About Challenges to Your Will? Consider a No-Contest Clause

Estate planning exists to enable you to provide for your loved ones and to distribute your wealth according to your wishes. Unfortunately, when learning of the contents of the will, some people may feel aggrieved by the share of the estate they receive and decide to contest your will in court. Knowing that your will may be challenged is a valid cause for worry. Fortunately, there is a potential solution: a no-contest clause.

The No-Contest Clause

In Alabama and other US states, a no-contest clause is essentially a written specification stipulating that any person who contests the will is to lose his/her status as a beneficiary. The clause is essentially a threat designed to prevent people from contesting a will.

Matters of succession are very delicate and arouse strong emotions from families and relatives. This is why proper estate planning is such an important issue. Some members may feel upset by their share of property even when distribution was done as equally and as fairly as possible. Others may feel wronged that a large portion of the estate was apportioned to causes such as charity or to beneficiaries outside the family. Others may just be bitter that they didn’t receive as much as they wanted. Such people will likely move to contest the will in court. It happens all too often.

This is where a no-contest clause comes in. It creates a deterrent against challenges to wills that only delay the estate’s execution on top of burdening the family with unnecessary expenses. In essence, you are offering the beneficiary a sum of money or property sufficient to dissuade them from causing problems.

Is A No-Contest Clause Enforceable In Alabama?

While Alabama has no laws regulating no-contest clauses, the courts have in many cases enforced no-contest clauses as per the wishes of the deceased, especially where a contest is made on frivolous grounds.

However, there are instances where courts have not enforced no-contest clauses. These are instances where:

  • Contest of will was done in good faith or out of good cause such as where the wording of the will is ambiguous or where an executor has made a mistake in the distribution of property.
  • Invalid will. Where a will is in itself invalid, it loses legal enforceability. A will can be invalid because it was not signed by the deceased and by witnesses, hence it does not meet the legal requirements of a valid will; it was made when the deceased was of unsound mind, and therefore had no capacity to make a will; or because the deceased was unduly influenced by another person to make the will in his/her favor. In such cases, Alabama law requires the deceased’s property to be distributed according to intestacy rules.
  • Person contesting the will is not a beneficiary under the will. A person not named as a beneficiary cannot be disinherited, as he/she was never included in the first place.

Alabama courts have generally given effect to no-contest clauses where they are clearly and properly constructed and do not result in a gross injustice.

When should I include a no-contest clause?

A no-contest clause is a powerful deterrent against frivolous challenges to your will. It is recommended you include a no-contest clause in your will:

  • If you intend to distribute your property in a way you suspect some people may feel aggrieved
  • If you intend to leave a significant portion of your estate to a cause or organization or charity
  • If you anticipate family feuds when property is being distributed
  • To protect your family from unreasonable and frivolous contests to your will.

The estate planning lawyers at Nolan Law are experienced in drafting wills with no-contest clauses. Contact us today to schedule your consultation.

 


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