When It Looks Like You Want to Challenge a “No Contest” Clause
Something just doesn’t seem right. In fact, you’re somewhat stunned. After your dad passes, you see his will for the first time. Most of the proceeds are earmarked for other people and seemingly obscure organizations. Yet, your father had a rather substantial estate, and you are his only surviving child. To add insult to the proverbial injury, you learn there is a “no contest” clause in your father’s will.
You can’t decide whether you’re hurt or angry. After all, it isn’t as though you have been entirely disinherited. However, you are not even familiar with many of the names of the other beneficiaries that will receive the bulk of the estate.
You replay all those special moments you and your father shared after Mom passed. Could it be that your father wasn’t of sound mind when he executed his final estate plan? What can you do?
No Contest or In Terrorem Clauses
In Texas, no contest clauses are also known as in terrorem clauses. Without a doubt, you might guess that the Latin term has something to do with fear. In plain language, an in terrorem clause acts as a warning sign in the will. Essentially, if you challenge what is left to you, you could wind up with absolutely nothing.
It might be a high price to pay, and certainly a gamble. After all, the purpose of a no contest clause is to discourage challenges. If you lose and the will holds up in court, there is the chance that you could forego your inheritance. For a moment, you may sit back and decide to ignore the whole thing. After all, it isn’t as if you were totally disinherited.
Frankly, that may have been part of the intent. If you were not included in the will, you would have no apprehension concerning the in terrorem clause. You would start with nothing and would have no fear that a challenge could take away what was gifted to you. All things considered, you should seek legal advice from an attorney with experience in will contests.
Texas Law and No Contest Clauses
Across the country, a couple of states will not even enforce no-contest clauses. Here, in Texas, these clauses are also known as forfeiture clauses. Sec. 254.005 of the Texas Estates Code outlines the circumstances when an individual may challenge such a clause and not worry about its enforcement. By a preponderance of the evidence, there must be proof that the individual:
- Had just cause for bringing the action, and;
- The action was brought and maintained in good faith
Texas case law has also addressed the types of actions that would not trigger an in terrorem clause. They are gathered together in this case as follows:
(1) To recover an interest in devised property;
(2) To compel an executor to perform duties;
(3) To ascertain a beneficiary’s interest under a will;
(4) To compel the probate of a will; in interrorem clause
(5) To recover damages for conversion of estate assets;
(6) To construe a will’s provisions;
(7) To request an estate accounting or distribution;
(8) To contest a deed conveying a beneficiary’s interest;
(9) To determine the effect of a settlement;
(10) To challenge an executor appointment;
(11) To seek redress from executors who breach fiduciary duties; and
(12) Presenting testimony in a will contest brought by other beneficiaries.
The bottom line is that there are a number of reasons you might be able to contest a will without fear that you could be disinherited by way of an in terrorem clause.