Legal Blog

The Weekly Scenario: Dealing with the “No-Contest” Clause

Question:  I believe my mother changed her Will shortly before her death as a result of influence my brother exerted over her in a time that she was frail and unable to resist his directions. My mother’s Will contains a ‘no-contest’ clause. If I bring an action for fraud or undue influence against my brother, will a Maryland court enforce the ‘no-contest’ clause? Answer: Based on these limited facts, it is difficult to say for sure whether a court would enforce the no contest clause (is that a lawyerly response or what?).

An important reason for having a Will is to safeguard your wishes after death since you (obviously) won’t be there to defend them. The typical ‘no-contest’ clause says that if a beneficiary challenges the Will (or a trust) in court, that bequest or share of the estate to that beneficiary is revoked and the beneficiary is potentially disinherited. Challenges occur for all sorts of reasons, for example when children feel they were not treated the same as their siblings.

The goal of such a clause is to make a person think twice before suing because if they sue as a beneficiary, they stand to get nothing under the estate.

In Maryland, like many other states, the enforceability of a no-contest provision is limited. If the court finds that there is some credible evidence (known as ‘probable cause’) that the contest will be successful to institute a contest proceeding then the no contest in the Will clause is invalid. However, if there is no probable cause found, the challenger stands to lose whatever she might have otherwise received.

Comment: To any testator who suspects there might be a problem with a potential challenger:

1. It is a good idea to be open with your wishes, thus reducing the likelihood of a surprise and manage those beneficiary expectations. 2. If there is a possibility of a challenge due to incapacity or even the state of mind of the testator, it might be a good idea to video the signing or even a shoot a video of mom or dad explaining the decision making process. 3. In anticipation of a litigious heir, one strategy is to leave them something versus cutting them out completely. If you leave a litigious heir nothing, he has nothing to lose by staying silent versus whatever you decide to leave for him that could be at risk.

If you have any questions or would like more information please contact Steve Shane at: sshane@offitkurman.com | 301.575.0313.

ABOUT STEVE SHANE

Steve Shane Head Shot for webSteve Shane provides strategic counseling to clients in need of estate administration, charitable giving and business continuity planning while minimizing estate, gift, and generation-skipping transfer tax exposure. He offers legal guidance to clients on asset protection and the proper disposition of assets in accordance with the client’s objectives, while employing tax planning techniques such as the use of irrevocable trusts, life insurance planning, lifetime gifts and charitable trust. He is also experienced with drafting documents for business planning, the incorporation and application for exemption for Private Foundations and the administration of decedents’ estates.

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