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Anti Contest Provision in a Trust or Will

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What is an Anti-Contest Provision in a Trust or Will?

Will contests are where the beneficiary named in a will is unhappy with the way that property has been distributed to them.  As a result, they may choose to file a civil lawsuit in order to get the will provisions changed or cancelled.  Such a contest or challenge may also happen in relation to a trust.   

An anti-contest provision in a trust or will basically states that any person who contests the trust/will terms will automatically forfeit the rights under the trust or will.  That is, they will lose their bequest (the property or assets they stand to gain from the will).  Anti-contest provisions operate similarly to the provisions in a basic contract.  Thus, anti-contest provisions may help to prevent occurrences of will contests.

Anti-contest provisions or clauses are enforceable under most state laws.  Anti-contest provisions in a trust or will are also known as “non-contest clauses” or “forfeiture clause”.   

What are the Limits of Anti-Contest Provisions?

Of course, anti-contest provisions cannot really prevent any person from filing a lawsuit in connection with the trust or will.  That is, a person can file a will or trust contest even if contains an anti-contest clause or provision. 

On the other hand, an anti-contest provision in a will or trust will usually state that if a beneficiary chooses to contest the document, they will forfeit their right to claim their inheritance through the document.  Therefore, an anti-contest provision may not be very effective if the person making the contest doesn’t stand to lose much by forfeiting such rights.

Also, many states enforce a “probable cause” theory in relation to trust and will contests.  That is, if a person had a legitimate, probable cause for contesting the will, they may be able to contest the will and still receive their bequest, even if they lose the challenge.  Probable clause requirements are not enforced in all states, and the definition of “probable cause” may depend on the circumstances of each case.

What are the Requirements for an Anti-Contest Provision in a Trust or Will?

Anti-contest provisions in a trust or will are surprisingly rare, and the requirements may be different according to state laws.  In general, an anti-contest provision:

  • Should be stated in clear and unambiguous language
  • Should not be unduly fair or prejudiced against beneficiaries
  • Should not be illegal or against public policy

The anti-contest provision is usually included within the will document itself.  It may appear near the end of the document and should be clearly identifiable and labeled. 

What is a “Gift-over” Provision?

Another important requirement in most states is that anti-contest terms for trusts or wills must also contain a “gift-over” provision.  Remember that a person who contests a will that has an anti-contest clause will forfeit their bequest.  Gift-over provisions spell out what will happen to the forfeited bequest in the even that a beneficiary does make a will contest. 

For example, the forfeited property may pass to the deceased person’s spouse or children in the event of a contest.  In most cases, without the proper gift-over provisions, an anti-contest provision may be invalid.

Do I Need a Lawyer for Disputes over Anti-Contest Provisions in a Trust or Will?

Anti-contest provisions in a trust or will can have major effects on the way a person’s estate is distributed.  You may wish to contact a trust/wills lawyer if you have questions regarding anti-contest provisions.  An attorney can help you draft an anti-contest provision if you need one, so that your desires can be fully expressed through the estate document.  Or if you are a beneficiary, a lawyer can help you pursue a legal claim in regards to your bequest. 

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 05-18-2015 10:48 AM PDT

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