Contesting a will with a no contest clause.

Contesting a will with a no contest clause.

 

 

 

Most wills have a no-contest clause in them. These no contest clauses are also called in terrorem clauses. I have described these here. Many people ask if these no contest clauses mean that they can’t contest a will. The answer to that question is no.

Courts are reluctant to enforce these clauses because of the chilling effect they have on legitimate claims that the will being contested is not the will of the testator. Imagine a situation where a person has gained undue influence over the testator who then makes a will leaving little to his family and benefiting the person exerting the undue influence. If the family receives anything under the will, they will be afraid that they will lose what little they have if they contest the will. It’s for this reason that courts are reluctant to enforce these clauses. The legislature also passed a law making these provisions void if the person contesting the will did so in good faith and with just cause. Under that law, even if a contestant loses the will contest, he won’t be denied his inheritance set out in the unsuccessfully challenged will if the court or jury finds he was contesting the will in good faith and with just cause. Of course, if someone is contesting a will without good faith and just cause, the courts may enforce the no-contest clause. There are very few cases where the courts have enforced these provisions although there are some.

You can find more information here.

I have created a podcast about no-contest clauses in a will. You can find it here.

Do You Legally Know What Your Attorney Knows?

Introduction

An attorney is an agent for the person (principal) that he represents. Agency law imputes the knowledge of the agent to the principal. If an agent knows something, the law says that the principal knows it as well.

Facts

An interesting case out of Ohio had the question of do you legally know what your attorney knows come up in relation to a will contest. In Ohio, (more…)

Relationship Poisoning And Undue Influence

History of Undue Influence

Undue influence is one of the harder things to prove in an inheritance dispute. The doctrine of undue influence derives from English courts.  A will contest heard by Sir Francis Bacon as the Lord Chancellor of England in 1617 illustrates common aspects of the process of undue influence which emerged in the context of a will contest.  These aspects include frail health, physical dependency, false affection, relationship poisoning, threats and mistreatment, and involvement in the execution of documents by and in favor of the alleged abuser.

Relationship poisoning and undue influence.

What is relationship poisoning in the context of a will contest? A Texas court held that when a person makes negative remarks about a person’s children and reinterprets historical events in a negative manner, the jury can consider these acts as relationship poisoning. Based on the relationship poisoning, the jury can find undue influence  and the verdict will be upheld. 340 SW 3d 769. While relationship poisoning alone may or may not be sufficient proof of undue influence, if it has occurred it needs to be brought to the attention of the court because it will assist the court in determining if undue influence has occurred.

Undue Influence in Texas

Contesting a Will Because of Undue Influence

Good Faith Exception in Will Contest

Good Faith Exception to No Contest Clauses in WillsGood Faith Exception

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. (more…)

Pin It on Pinterest