Think of a no contest provision of a last will as the proverbial line drawn in the sand that aims to disincentivize beneficiaries from challenging the administration or the validity of the will. You’re telling your beneficiaries, “deal or no deal” or “take it or leave it.”
If the will contest is unsuccessful – as most will contests are – the contesting beneficiary forfeits all the gifts that he or she would have received under the will, and those gifts pass to other beneficiaries as if the contesting beneficiary failed to survive you. If the will contest is successful, the contesting beneficiary may enter into a compromise with your executor and the other beneficiaries that redistributes assets in a way from what you originally planned.
Example of a No Contest Provision
The following provision in italics is an example of a no contest provision. It states that if a beneficiary challenges or disrupts the administration of the estate, that beneficiary shall forfeit the benefits the beneficiary would otherwise have received under the will, unless the probate court rules that the beneficiary acted in good faith and had probable cause to do so.
"If any beneficiary of my estate in any manner, directly or indirectly, contests the probate or validity of this Will or any of its provisions, or institutes or joins in, except as a party defendant, any proceeding to contest the probate or validity of this Will or to prevent any provision hereof from being carried out in accordance with the terms hereof, then all benefits provided for such beneficiary are revoked and shall pass as if that contesting beneficiary had failed to survive me. The provisions of this Article shall be enforceable unless in a court action determining whether this no contest clause should be enforced, the party bringing the contest establishes that the contest was brought and maintained in good faith and that probable cause existed for bringing the contest."
Are no contest provisions effective?
Funded no contest provisions can be an effective tool to reduce the chance of a beneficiary contesting your will. A funded no contest provision is one where beneficiaries have sufficiently large stakes in the existing will that they are unlikely to risk losing them.
If a beneficiary is set to receive $100 in the will when he or she thinks she should be entitled to $100,000, a no contest provision is unlikely to dissuade him or her from challenging the will. The no contest provision hasn’t been "funded," and therefore the affected individual has little to lose and much to gain.
If you are uncomfortable or unwilling to fund your no contest provision by giving beneficiaries who may feel begrudged a healthier parting gift, consider an alternative. Instead of pairing a paltry gift with a no contest clause, disinherit the individual outright with a simple disinheriting statement such as “I explicitly make no financial provisions in my will for my brother, Tommy, or his descendants.”
Should you include a no contest provision in your will?
Adding a no contest provision to your last will is easy to do. When properly supported by the rest of your last will document, the no contest provision can be an effective deterrent against potentially costly challenges to your will's administration, saving your estate time and money.
Make sure that you carefully read and understand your no contest provision, as some use different language than others. The no contest provision from the example above states that "all benefits provided for such beneficiary are revoked and shall pass as if that contesting beneficiary had failed to survive me." Other common language extends the revocation to not just the contesting beneficiary but also the contesting beneficiary's heirs. Such a provision may purposefully or inadvertently disinherit a grandchild whose parent (the testator's child) unsuccessfully contests the will.
