Why Include a No Contest Clause in Your Will?

If you are planning for end-of-life, you’ve probably written a last will and testament. Your will includes instructions about who will receive your assets when you die. However, in many cases, family members may not respect your choice of heirs. In the case where family members argue over the fairness of your will, someone may dispute the validity of your will by filing a will contest. Including a “No Contest Clause” in your will can prevent endless inheritance battles in court.

What is a “No Contest Clause?”

Including a No Contest Clause in your will can prevent litigious relatives from filing frivolous suits against your estate. This clause states that any heir who legally contests your will or the terms of a trust receives nothing. If you know that an heir may not feel happy with their inheritance and may sue, a “no contest clause” can give your estate the protection it needs.

Why Include a “No Contest Clause” in Your Will?

When a relative is left out of or receives less than they want from your will or trust, they can sue if they have valid legal grounds in North Carolina. Your intent doesn’t matter if they have legal grounds to sue. If someone feels your will is unfair and can prove legal grounds in a court of law, they can have the will changed in their favor.

However, with a no-contest clause, if they file a lawsuit, they lose any inheritance whatsoever. Most individuals will not take on the risk of losing everything to get more.

Another genuine possibility is a relative who feels disenfranchised from your will and repeatedly sues. Repeat court cases that tie your estate up in court for years cost thousands of dollars and drain your estate. Your other heir’s inheritance can dwindle in these repeated lawsuits. The court and attorney fees add up and drag on for years. Your heirs sometimes must wait years for their inheritance as one disgruntled individual ties the estate up in court.

You can reduce the possibility that a relative will sue your estate in a will contest. Including a “No Contest” clause can make your relatives think twice about contesting their inheritance.

How Does a Will Contest Prove a Will is Invalid?

The probate court is in charge of settling an individual’s estate. One of their first roles is investigating any wills brought forth by family members as the valid will. Once the judge looks at the evidence, they decide which will is valid and “probate” the will. Probating a will means that the probate judge has agreed that the will is valid.

A will contest is only possible if someone has legal grounds to contest a will. North Carolina law recognizes these reasons for legally contesting a will:

Incapacity or Incompetence

A will written during incapacitation or medical incompetence is not valid. If your father is in a nursing home with Alzheimer’s and decides to rewrite his will, the new will may not hold up in court. Depending on his state of mind when writing the will, the court could declare the will invalid. If a doctor witness proves he was incompetent when writing the newer will, a judge could probate a previous will instead.

Fraud

If your brother decides to rewrite your father’s will, backdate the document, and sign it like your father, he commits fraud. Fraud is an intentional ploy to gain financially using lies or deception. For example, let’s say that you know that your father’s will gives his entire retirement account to you. However, when he passes away, you find out that the will gives the retirement account to your brother instead. At this point, you may wonder if he changed the will and forged your father’s signature.

Undue Influence

Another way family members may distort your intentions is by exerting undue influence on you. In other words, they convince you to change the will in a way that undermines your actual intentions. Perhaps your daughter’s boyfriend puts pressure on you (her grandmother) with a threat of violence. Or maybe your younger friend manipulates you with false promises. In these situations, individuals abuse your trusting nature.

Problems with Witnesses

Two witnesses must sign a will in North Carolina. Individuals don’t have to get a last will and testament notarized to be a valid will. However, they need two witnesses to sign the document in their presence. If you can prove that the testator’s witnesses are invalid, the will is invalid. Witnesses testify that you are eighteen years of age or older, of sound mind, and under no constraint or undue influence.

If an heir can prove that the witness knew the will was invalid, their witness signature is invalid, and so is the will. For example, let’s say your aunt is a witness, but your niece can prove she was in a coma when she supposedly signed the will. In this case, your niece has valid grounds to contest the will’s validity.

Unclear Language

If a testator writes a will in their own handwriting, it may hold up in court as valid. However, unclear language or intentions may cause a court to throw the will out. If another valid will exists, then the court will probate that will. The estates of those who write wills without the help of an experienced estate planning attorney often face this type of scrutiny from a judge.

Another Valid Will

If a probate court receives two separate wills from family members, they must investigate and determine which will to probate. A court moves forward once they probate a will. However, if you find another valid will written later, you may contest the will in probate court. The probate court will then decide which will is valid.

Prevent Inheritance Arguments

Including a no-contest clause in your will gives your estate the right to revoke any inheritance given to someone who would sue your estate. A no-contest clause is a strong deterrent against legal will contests. An individual who receives $10,000 in inheritance but expected $20,000 is not likely to sue if they can lose the $10,000 just for filing a suit.

We Can Help

If you have questions about writing your will or how best to prevent will contests, contact us at Cape Fear Law. Our focus on estate planning means that your last will and testament is an airtight document that distributes to your beneficiaries as you choose. Prevent family disputes and disagreements with a strong and well-written last will and testament.