Texas and many other states will enforce forfeiture clauses in wills if the contestant is not successful. The clauses are know as no contest provisions or in terrorem clauses . Texas has a Good Faith Exception in Will Contest involving no-contest clauses. There is an exception to enforcement if the person contesting the will brings the action in good faith. EC 254.005. In that case, the courts will not enforce no-contest forfeiture clauses.
Some states like Mississippi had not recognized the good faith exception to forfeiture but that has changed. In 2015 the Mississippi Supreme Court in Parker v. Benoist recognized the good faith exception. The court stated that the logic for a good faith exception is simple: courts exist to determine the truth. A forfeiture clause that operates regardless of a party’s good faith in bringing suit to ascertain the validity of a will frustrates the fundamental purpose of a court, which is to determine whether a will is valid or not. Citing a Connecticut case the Mississippi Supreme Court noted “Courts cannot know whether a will, good on its face, was made in conformity to statutory requirements, whether the testator was of sound mind, and whether the will was the product of undue influence, unless these matters are presented in court. And those only who have an interest in the will will have the disposition to lay the facts before the court. If they are forced to remain silent, upon penalty of forfeiture of a legacy or devise given them by the will, the court will be prevented by the command of the testator from ascertaining the truth, and the devolution of property will be had in a manner against both statutory and common law. Courts exist to ascertain the truth and to apply it to a given situation, and a right of devolution which enables a testator to shut the door of truth and prevent the observance of the law is a mistaken public policy. If, on contest, the will should have been held invalid, the literal interpretation of the forfeiture provision has suppressed the truth and impeded the true course of justice. If the will should be held valid, no harm has been done through the contest, except the delay and the attendant expense.”
Successful Will Contest
Of course if the will contest is successful, then the entire will, including the no-contest clause, is void. The good faith issue only comes in to play when a contest is not successful and acts to prevent the forfeiture of any legacy that the contestant would receive under the contested will.
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By Robert Ray a Board Certified attorney. The foregoing information is general in nature and does not apply to every fact situation. We handle litigation involving inheritance disputes. We don’t prepare wills. We don’t file wills for probate or distribute estates except when we are contesting a will or protecting a will from a contest. We handle a select few cases on contingency. Don’t use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.