A will is a legal document that details how a person wishes their estate to be distributed when they die. Their estate could consist of real property or personal property, and their will should contain clear instructions regarding what property is to be given to which specific beneficiary.
In most states, a will must contain each of the following in order to be valid and legally enforceable:
- The will must be in writing;
- The will must be signed by the will’s creator, also known as the testator;
- The will must be witnessed by at least two competent witnesses; and
- The testator must have testamentary capacity.
Contesting a will means challenging the authority or validity of the will, as well as its provisions. A person generally contests a will when they feel they are being cheated out of what the testator intended for them to receive, such as their rightful inheritance. The person contesting the will likely believes that the distribution is unfair, or otherwise not according to the decedent’s actual wishes and intentions.
The contesting beneficiary named in the will may choose to file a civil lawsuit in order to have the will’s provisions changed, or cancelled entirely. Such contests may also occur in relation to a trust, which is an additional estate planning instrument and functions similarly to a will.
An anti-contest provision placed in a trust or a will states that any person who contests the document’s terms will automatically forfeit anything they were entitled to as a beneficiary. Anti-contest provisions are similar to the provisions included in a basic contract.
Anti-contest provisions are intended to help prevent any occurrence of will contests. This is because will contests often lead to legal battles. They are enforceable under most state laws, and may also be known as no contest clauses or forfeiture clauses.
Do Anti-Contest Provisions Have Any Limitations?
It is important to note that even the most well-written anti-contest provision has its limitations and cannot prevent all disputes from occurring. Such provisions cannot entirely prevent a person from filing a lawsuit in connection with the trust or will. This means that a person can file a will or trust contest even if the will or trust document contains an anti-contest clause or provision.
As the provision cannot outright prevent someone from contesting the will or trust, it instead penalizes such actions. An anti-contest provision accomplishes this by stating that any beneficiary who chooses to contest the will or trust forfeits their right to claim their inheritance as outlined in the document. Because of this, an anti-contest provision may not be very effective if the beneficiary contesting the document does not stand to lose much by forfeiting their rights.
Additionally, many states enforce a probable cause theory in regards to trust and will contests. What this means is that if a person can prove that they have a legitimate, probable cause for contesting the will or trust, they may be able to proceed with the contest and still receive what they were to gain. This is true even if the contesting beneficiary loses their contest. Probable cause requirements are not enforced in every state, and the exact definition of what constitutes probable cause could depend on the circumstances of each individual case.
What Are the Requirements for an Anti-Contest Provision In a Will or Trust? What Is a Gift Over Provision?
Anti-contest provisions are actually rarely included in wills or trusts. The requirements for such provisions may differ according to state laws. However, in general, an anti-contest provision should:
- Be stated in clear and unambiguous language. Vague language should be avoided;
- Not be unduly fair or prejudiced against its beneficiaries; and
- Not be illegal or against public policy.
An anti-contest provision is typically included within the will document itself. It could appear near the end of the document, but no matter its placement, it should be clearly identifiable and labeled. Another important requirement in most states is that ant contest provisions must also contain a gift over provision. This provision spells out what will happen to the forfeited bequest in the event that the intended beneficiary does contest the will or trust.
An example of this would be that the forfeited property may pass to the decedent’s spouse or children in the event of a contest. In most cases, without proper gift over provisions, the anti-contest provision would be rendered invalid.
Do I Need an Attorney for Anti-Contest Provisions in a Trust or Will?
Clear and valid estate planning is the best way to ensure your estate is distributed according to your wishes when you die. Failing to do so could result in legal disputes amongst your beneficiaries.
Consulting with a skilled and knowledgeable probate attorney is an effective way to ensure your wills and trusts are in clear language, and are legally valid. An experienced estate attorney can also ensure your wills and trusts contain the specific provisions your estate requires.