What Are Anti-Contest Provisions in Wills?
One of the hallmarks of the American justice system is that all aggrieved persons have access to our courts and can have their day before such a tribunal to be heard on their grievances. However, in the context of trusts and estates litigation, it is possible to persuade, if not discourage, persons from flexing those legal muscles and taking advantage of that right and privilege. In the realm of anti-contest provisions in wills, the bargaining chip that is often used is a loss to a party if she exercises the right to contest a will provision.
An anti-contest provision in a will is one of the ways that a testator can discourage challengers to certain provisions in the will. The provision or clause operates as a type of forfeiture to the party who makes the challenge and lodges the opposition to the will itself and its creation, enforcement, and specific provisions. Anti-contest provisions are also referred to as non-contest provisions, forfeiture clauses, and in terrorem clauses. The clause mandates that contesters of the will automatically lose any gift or bequest that is otherwise normally made to them from the estate, pursuant to the terms of the will.
Are Anti-Contest Provisions Enforceable?
Yes, they most certainly are. The majority of U.S. states enforce anti-contest provisions in wills without scrutiny or question. It is important to note, however, that an anti-contest provision is useless to block a forgotten beneficiary or heir from lodging a will contest against the estate because that forgotten party has nothing to lose. The penalty of bringing a will contest is the forfeiture of the ordinary bequeath under the will and by virtue of being omitted and forgotten, these individuals are not eligible to suffer from such a penalty or loss.
What Is the Practical Effect of an Anti-Contest Will Provision?
In order to make anti-contest provisions effective, the risk that a challenger faces must be a meaningful and significant one to that party as a potential beneficiary under the will. Testators must realize that just by virtue of having an anti-contest provision in their wills, all contests and challenges to the will are not strictly and absolutely blocked. Instead, the anti-contest provision translates into a loss to the will challenger of his or her ordinary share of the testator's estate if that challenger disrupts and interferes with the will's advancement through the probate process.
What About a Successful Will Provision Contest?
If a challenger to a will is willing to gamble on such stakes and risk a penalty such as that, and that opponent's will challenge proves meritorious, then the anti-contest provision is nullified and mooted. In such situations, the overall will is overturned and the ordinary gifts that serve as penalties under the anti-contest provisions are also null and void.
What Happens to Forfeited Gifts That Were Devised to Will Challengers?
As a prudent point of practice, testators who wish to include anti-contest provisions in their wills must be sure to indicate in the will's provisions what will occur to any bequests that are forfeited by will challengers who are not successful in their will contests. This type of provision is referred to as a "gift over" clause. It must be included in the will if there is an anti-contest provision, or the provision will be deemed invalid and incomplete.