A will is a legal document that outlines an individual’s desires for distributing their estate upon their passing. An estate can encompass real property (land and buildings) or personal property (vehicles, artwork, jewelry, etc.). A comprehensive and clear will should designate which specific beneficiary will receive each piece of property.
In the majority of states, for a will to be deemed valid and legally enforceable, it must meet the following criteria:
- The will must be in writing;
- The will must be signed by its creator, commonly referred to as the testator;
- The will must be witnessed by a minimum of two competent witnesses; and
- The testator must possess testamentary capacity, meaning they have the mental ability to understand the consequences of creating and signing the will.
What Does Challenging a Will Involve?
Contesting a will involves challenging the legitimacy or authority of the will and its provisions. Generally, a person contests a will if they feel they have been unfairly deprived of what the testator intended for them to receive, such as their rightful inheritance. The person contesting the will likely believe the distribution is unjust or does not accurately reflect the decedent’s true intentions and wishes.
The contesting beneficiary named in the will may file a civil lawsuit to have the will’s provisions altered or nullified altogether. Similar contests can also occur concerning a trust, another estate planning instrument that functions similarly to a will.
Here are a few examples of when someone might challenge a will:
- Lack of capacity: A person may challenge a will if they believe the testator (the person who created the will) did not have the mental capacity to understand the consequences of their actions when creating the will.
- Undue influence: A will may be challenged if someone believes the testator was coerced, manipulated, or unduly influenced by someone else when creating the will.
- Fraud: If someone believes that the testator was tricked or deceived into creating or signing a will, they may challenge the will based on fraud.
- Ambiguity: A will may be challenged if its terms are unclear or ambiguous and there is disagreement among the beneficiaries or heirs about what the testator intended.
- Formalities: A will may be challenged if it was not executed in accordance with the state’s formal requirements, such as the need for witnesses or a notary public to witness the signing of the will.
What is an Anti-Contest Provision?
An anti-contest provision included in a trust or a will stipulates that any person who challenges the document’s terms will automatically forfeit anything they were entitled to as a beneficiary. Anti-contest provisions resemble the clauses found in standard contracts.
The purpose of anti-contest provisions is to deter potential will contests, as these often lead to lengthy and costly legal battles. These provisions are enforceable under most state laws and may be referred to as no-contest or forfeiture clauses.
An example of an anti-contest provision could be:
“If any beneficiary under this trust contests, challenges, or attacks the validity of this trust, or any of its provisions, then that beneficiary’s interest in the trust shall immediately be forfeited, and such interest shall be distributed to the remaining beneficiaries as if the contesting beneficiary had predeceased the grantor.”
This provision would discourage beneficiaries from challenging the trust, as they would risk losing their inheritance if they contest the trust’s validity or any of its provisions.
Do Anti-Contest Provisions Have Any Limitations?
Even the most meticulously crafted anti-contest provision has limitations and cannot prevent all disputes. Anti-contest provisions cannot completely stop a person from filing a lawsuit concerning the trust or will, so a person can technically file a will or trust contest even if the document contains an anti-contest clause or provision.
Since the provision cannot outright prohibit someone from contesting the will or trust, it serves to penalize such actions instead. An anti-contest provision effectively deters challenges by declaring that any beneficiary who chooses to contest the will or trust forfeits their right to claim their inheritance as outlined in the document. However, an anti-contest provision may be ineffective if the beneficiary contesting the document has little to lose by forfeiting their rights.
Many states also implement a probable cause theory concerning trust and will contests. This means that if a person can demonstrate they have a legitimate, probable cause for contesting the will or trust, they may be allowed to proceed with the contest and still receive their intended inheritance. This applies even if the contesting beneficiary loses their contest. Probable cause requirements vary between states, and the exact definition of what constitutes probable cause may depend
What is a Probable Cause Theory?
Many states also implement a probable cause theory regarding trust and will contests. If a person can demonstrate they have a legitimate, probable cause for contesting the will or trust, they may be allowed to proceed with the contest and still receive their intended inheritance.
This theory applies even if the contesting beneficiary loses their contest.
What Are the Requirements for an Anti-Contest Provision in a Will or Trust? What Is a Gift Over Provision?
Despite their potential benefits, anti-contest provisions are not commonly included in wills or trusts. The requirements for such provisions differ according to state laws, but in general, an anti-contest provision should:
- Be expressed in clear and unambiguous language, avoiding any vagueness;
- Not be unduly fair or prejudiced against its beneficiaries; and
- Not be illegal or contrary to public policy.
Typically, an anti-contest provision is integrated within the will document itself. It may appear near the end of the document, but regardless of its placement, it should be easily identifiable and labeled.
Another essential requirement in most states is that anti-contest provisions must also contain a gift over provision. This provision clarifies what will happen to the forfeited bequest if the intended beneficiary contests the will or trust.
For example, if a contest occurs, the forfeited property might pass to the decedent’s spouse or children. In most cases, the anti-contest provision would be considered invalid without proper gift-over provisions.
Do I Need an Attorney for Anti-Contest Provisions in a Trust or Will?
Clear and valid estate planning is crucial to ensure your estate is distributed according to your desires when you die. Failure to do so may result in legal disputes among your beneficiaries.
LegalMatch can help you find a skilled and knowledgeable will contest attorney who can ensure that your wills and trusts are written in clear and legally valid language.
Our platform allows you to post your legal concerns for free, and then we will match you with local attorneys who have the relevant experience and expertise to handle your case.
With LegalMatch, you can easily compare the qualifications, experience, and rates of multiple probate attorneys in your area before selecting the one that best fits your needs. This can save you time and money, as you can be confident that you are working with a skilled and knowledgeable lawyer who can provide you with the best possible outcome for your situation.
Using our services, you can connect with an experienced estate attorney who can customize your wills and trusts to meet the specific requirements of your estate. This can give you peace of mind that your estate plan is properly constructed and legally sound.
Use LegalMatch to find a will contest lawyer today.
