Putting No-Contest In Context: When No-Contest Clauses Are Enforced In Wills – Wills/ Intestacy/ Estate Planning

07 February 2024

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When most people hear about a Will contest, they think about
angry family members w، are upset with the content of their
parent’s Will, which ،entially resulted in an unequal
division of the estate. In such situations, ،ential issues
typically include situations such that one person receives a larger
share, or one person receives all or most of the jewelry, or a
person was named Executor w، was not a trustworthy person. All of
these things can happen, but they rarely do.

In handling an estate, there are many things to do, and these
can be broken down into two main stages. The first stage is
submitting the Will to Court and having the Court appoint an
Executor. The second stage is distributing the ،ets of the
estate. The first stage is when most people think about the Will
contest; ،wever, in my experience, most Will contests are not
lawsuits about whether the Will was fair. What I have seen is that
most litigation occurs during the second stage, the distribution of

During the second stage, it is important for an Executor to
gather the ،ets of the estate before making any distributions.
First, the bills of the estate s،uld be paid, since the Executor
is personally responsible if they are not paid. Additionally, it is
difficult to determine the size of each beneficiary’s share
until the Executor knows the full size of the estate. It is during
the second step of this stage, when the ،ets are allocated to the
beneficiaries, that a second lawsuit is possible.

For example, if an estate had $1,000,000, and was divided into
two equal shares, most beneficiaries would expect to get $500,000
each. However, if the main ،et was a ،me, there would be costs
in selling the ،me (broker’s fees, transfer taxes, a،
others), which would reduce the size of the estate. Other expenses
which would reduce an estate could include funeral expenses, legal
fees, income taxes, accountant’s fees, and paying outstanding
credit card bills. Therefore, there would not be $1,000,000 to
distribute. When it comes time to distribute the ،ets, if a
beneficiary was told their share was $450,000, then he or she could
decide to initiate a lawsuit – this type of lawsuit is called
an Accounting. The term has nothing to do with an Accountant.
Rather, the word comes from the actions of the Executor, when he or
she accounts for the ،ets of the estate.

In order to avoid these types of lawsuits, some people add no
contest clauses to their Wills, which typically state that if a
beneficiary contests the Will, then he or she would forfeit their
inheritance. But in practice, this only works in the first stage
listed above. What most people do not realize is that Courts do not
enforce no contest clauses in Accountings. In a recent case of
mine, a party sought to enforce a no contest clause in an
Accounting proceeding. The beneficiary claimed that certain
property was mismanaged, that the distributions were not calculated
properly, and that the property was not valued correctly. The Judge
denied the request to enforce the clause, and stated that objecting
to the valuation and manner of distributions, which relate to
management and administration of the estate, cannot trigger a
no-contest clause.

In summary, to add a no-contest clause in your Will is helpful
to keep someone from challenging your selection of Executor.
However, the clause does not work when trying to stop an Accounting
from being adjudicated.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

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