What is a no contest clause
Many wills and trust have no contest clauses, also referred to as in terrorem clauses. These basically say that anyone who contest the will or trust looses their inheritance under the will or trust. People are afraid that they will get nothing if they contest the will.
Are no contest clauses enforceable?
Texas courts don’t like to enforce these forfeiture clauses if there is a reasonable way to avoid enforcement. Heirs getting nothing is not what courts want to see. There are only a handful of Texas cases that enforce these clauses. The majority of cases don’t enforce them. Many courts created a good faith exception. If a contest was brought in good faith, there was no forfeiture. In addition to the good faith exception, one court listed twelve items that do not trigger the forfeiture effects of a no contest clause: (1) to recover an interest in devised property; (2) to compel an executor to perform duties; (3) to ascertain a beneficiary’s interest under a will; (4) to compel the probate of a will; (5) to recover damages for conversion of estate assets; (6) to construe a will’s provisions; (7) to request an estate accounting or distribution; (8) to contest a deed conveying a beneficiary’s interest; (9) to determine the effect of a settlement; (10) to challenge an executor appointment; (11) to seek redress from executors who breach fiduciary duties; and (12) presenting testimony in a will contest brought by other beneficiaries. 01-10-01019-CV.
The Texas legislature adopted the reasoning on good faith and recently updated the law on no contest or in terrorem clauses and the good faith issue. The new law makes it easier to contest wills that have no contest provisions and voids in terrorem clauses in wills and trust if a contest of the will or trust was brought in good faith. In other words, even if the will provides for a forfeiture in the event of a will contest even one brought in good faith, the new legislation voids those provisions if the contest was brought in good faith. Because of this new law, your should not let the existence of a no contest clause in a will keep you from contesting a will if you are acting in good faith and with just cause.