What is a No-Contest Clause?

Your last will and testament leaves instructions for what should happen to your assets and properties upon your death. No one knows what the future will bring, but we can prepare for it. If you have not prepared a will, you should do so at once with help from a Texas estate planning attorney.

But even if your will is prepared by a lawyer, you may not have the final say about the fate of your assets and properties. A will may be challenged in a probate court by someone who claims the document isn’t valid or that you were unduly influenced when you had the will prepared.

A “no-contest” clause may be added to your will to discourage anyone from challenging the will. A no-contest clause establishes that if a beneficiary challenges the will and loses that challenge, that person forfeits his or her inheritance. Should your own will include a no-contest clause?

What Can Happen After Your Death?

If your will does not include a no-contest clause, a dissatisfied beneficiary may contest its validity. Probate court battles over wills are costly and time-consuming. You will need to consult a Texas probate lawyer to determine if your own will should include a no-contest clause.

While a no-contest clause in your will helps you ensure that your wishes will be carried out and your instructions will be followed, such a clause may be perceived as coercive, because it threatens to disinherit a beneficiary who may have a legitimate challenge to the will.

Under Texas law, beneficiaries have two years to challenge a will from the date that the will is admitted into probate. It’s a strict deadline, and anyone who is attempting to challenge a will in this state will need to be advised and represented by a Texas probate lawyer.

What Are the Grounds for Contesting a Will?

Under Texas law, a last will and testament cannot be challenged merely because someone is unhappy with it. The courts do not care if a will is “fair.” The court’s only concern is whether the will is legally valid. These are the four most common challenges to a will’s validity:

  1.  Lack of capacity: To prepare or amend a will, you must have legal capacity. If you lose capacity because of dementia or some other medical reason, any will you prepare or amend will not be considered legally valid.
  2.  Undue influence: You may challenge a will in Texas if you have evidence that a third party (such as a friend, a relative, or a caretaker) exerted undue pressure on the “testator,” the person who created the will.
  3.  Forgery or fraud: You may challenge a will when you have evidence that the document is fake or forged. If you can prove that a last will and testament is a forgery or a fraud, the document will not be honored or recognized by a probate court.
  4.  Improper execution: Wills in Texas are valid only if they satisfy specific requirements. For example, your will must be signed in the presence of two “credible” witnesses who are at least 14 years old. (“Credible” witnesses receive no financial benefit from a will.)

Do the Courts Always Enforce No-Contest Clauses?

Not every no-contest clause is enforceable. A no-contest clause in your will may be deemed unenforceable or invalid by a Texas probate court if the language of the clause is inexact or if the clause violates Texas law or public policy.

If you decide to add a no-contest clause to your will, it should be prepared by a Texas estate planning attorney who knows how to draft the specific and legally valid no-contest clause that’s right for your own situation.

However, even if your last will and testament includes a legally enforceable no-contest clause, your will may still be challenged. And in Texas, when a challenge emerges to a will that includes a no-contest clause, the probate process can become exceedingly complicated.

Carefully consider including a no-contest clause in your will, and discuss with your estate planning lawyer the best ways to reduce the risk of a legal challenge to your will while still ensuring that your wishes are carried out and your instructions are followed.

Are You the Executor of a Will in Texas?

In the State of Texas, if you are the executor of a will that includes a no-contest clause, seek a probate attorney’s advice and guidance immediately upon the death of the person who prepared the will. An executor’s first step is determining if the no-contest clause is valid and enforceable.

The second step is making certain that all of the beneficiaries fully understand the terms of the will and that there are no misunderstandings. If the will is contested, the executor should work closely with a Texas probate attorney to defend the will and protect the decedent’s wishes.

When it is drafted by an experienced and knowledgeable Texas probate and estate planning attorney, a no-contest clause added to your last will and testament will be valid and enforceable, and it can provide you with peace of mind regarding the future.

Have You Prepared Your Will or Estate Plan?

A valid and enforceable will is essential if you have a family, own a business, or if others are counting on you in some way. Basic estate planning can be accomplished with a will alone, but if your estate is substantial or complicated, you should establish a comprehensive estate plan.

At Mike Massey Law, our estate planning attorneys help their clients set up estate plans that include wills, trusts, advanced health care directives, living wills, and durable powers of attorney. We also help beneficiaries and executors who are struggling with the probate process.

We cannot know what the future will bring, so if you have not yet prepared a last will and testament or an estate plan, the time to start planning for tomorrow is today. Mike Massey Law provides comprehensive estate planning services to our clients throughout the State of Texas.

Begin preparing your will or estate plan now by calling Mike Massey Law in Austin at 512-400-4430 or in Houston at 713-489-7360. Our estate planning team will provide sound legal advice, prepare the documents you need, and if necessary, fight on your behalf before a Texas probate court.