For many Texans, the thought of their family members fighting after their death because of the contents of their will is something they cannot bear. In many cases, this fighting can lead to a family member contesting the validity of the person’s will. One solution to this potential issue is to include a no-contest clause within a person’s Last Will and Testament. A no-contest clause provides for the disinheritance of an heir if they challenge the validity of the will. Because there are details specific to a no-contest clause, along with the ability to contest a no-contest clause, Texans should be aware of the purpose and effect of a no-contest clause before incorporating it into their estate plan.
What is a No-Contest Clause?
A no-contest clause prohibits beneficiaries of the will from challenging its terms. In the will, the no-contest clause will state that if a beneficiary contests the will and loses this challenge, the beneficiary will receive nothing. This greatly disincentives people from contesting the will if they are merely unhappy with the terms of the will. Instead, beneficiaries are likely to only challenge the will if malfeasance or manipulation occurred. However, if a beneficiary challenges the will and is successful, the no-contest clause would be voided along with the will.
Are No-Contest Clauses Enforceable in Texas?
While some states have deemed no-contest clauses unenforceable, Texas is not one of these cases. Texas Estates Code § 254.005 provides that a no-contest clause is enforceable unless the person contesting the will:
(1) did so in good faith; and
(2) with just cause. This means the person contesting the will has an extremely high burden to overcome in convincing a judge that the contents of the will are invalid.
Beneficiaries can contest the will or the validity of a no-contest agreement for many reasons. However, beneficiaries will often challenge the validity of a will due to improper execution, undue influence by another person, or fraud. Beneficiaries are more incentivized to challenge a will if they will receive a significantly greater amount of assets if the will is invalidated. When there is not a great disparity between what a beneficiary would receive under the current will and if the will’s contestation is successful, many chose not to challenge the will.
For individuals who believe adding a no-contest clause to their will is the right decision, they should contact an experienced estate planning attorney to assist in this process.
Contact a Houston Estate Planning Attorney
If you or a loved one wants to add a no-contest clause to a will, contact the experienced Houston estate planning attorneys at McCulloch & Miller, PLLC. With our experience, sensitivity, and professionalism, we are here to put your family first and create an estate plan that works for your specific needs. Our attorneys will advise you of your options and discuss the positives and negatives of including a no-contest clause in your estate plan. To speak with one of our attorneys and to schedule a consultation, give us a call today at 713-333-8900.