Making a will is an intensely personal undertaking, and it frequently happens that the testator (person making the will) decides on a distribution of assets that at least one heir is unhappy with. In those cases, or in situations where there is conflict among family members, the testator may be worried about someone contesting the will after his or death. Enter the "no-contest" clause, also called an in terrorem clause.
What exactly is a no-contest clause? Just what you might expect: a provision that if an heir challenges a will in court and loses, he or she will inherit nothing. Because challenging a will successfully is not easy to do, the presence of a no-contest clause may be enough to discourage an heir who is simply trying to grab a bigger piece of the pie or make trouble for estranged family members.
Of course, in order for a no-contest clause to be effective as a deterrent, there must be some risk involved in challenging a will. If an heir has been disinherited altogether, or left a nominal amount, it may be worth it from his or her perspective to challenge the will. The "teeth" of the no-contest clause lie in the provision's ability to take away an inheritance; if that inheritance was only a dollar, the risk of losing it is a small price to pay for the prospect of gaining much more.
Some states are willing to enforce a no-contest clause unless the will contest was brought in good faith or for probable cause, or both. Ohio will enforce such clauses regardless of probable cause or good faith, making it even more risky for an heir who challenges a will. However, a few Ohio cases have shown some inclination toward invalidating no-contest clauses in the case of good faith or probable cause challenges, so it is possible that this aspect of the law could change in the future.
Ohio has enforced no-contest laws for well over a century, since the 1869 Ohio Supreme Court case of Bradford v. Bradford. In the Bradford case, the Ohio Supreme Court asserted that it is the “duty of the courts to carry out the intention of the testator unless that intention be contrary to the policy of the law,” before finding the no-contest clause in the will valid and enforceable.
If legal action against the will can invoke the no-contest clause, it is important to know just what kinds of action can trigger this provision. In the intervening decades since the Bradford case, a number of other court cases have helped to answer this question.
For example, filing exceptions to an inventory, or objecting to the sale of probate property does not rise to the level of a contest that would trigger the no-contest clause. Neither is a legal action to construe the will or to request guidance regarding an executor's powers. Ohio courts have held that if questioning an executor or other fiduciary's actions constituted a will contest, fiduciaries would be beyond the power of the court.
While most states are willing to enforce no-contest clauses to some extent, two—Florida and Indiana—do not. If you anticipate moving to one of those states, and have a no-contest clause in your will, you may want to consider revising your estate plan to prevent will contests another way.
The ultimate goal of a no-contest clause, of course, is to prevent heirs from challenging a will. There are other means to accomplish this goal, which can be used instead of or in conjunction with, a no-contest clause.
The mere fact that an heir does not like the amount that was left to him or her is not reason to set aside a provision in the will or invalidate the will itself. Heirs who wish to successfully challenge a will (whatever their private reasons) must do so for a reason permitted by law, such as undue influence, lack of competency to execute a will, or improper execution of a will.
You can head challenges off at the pass by making sure your heirs cannot successfully assert any of these reasons to set aside your will. For starters, make certain that your will is properly drafted and executed by working with an experienced Ohio estate planning attorney who will make sure that there are no defects in the execution. To stave off later questions about your competency to make a will, speak with your attorney about how you might do that; your attorney may be able to ask you a series of questions to prove your competency (and note that he has done so) or refer you to a doctor for a competency test.
Alternatively, you might have your signing of the will video recorded. People who might later question whether you were competent to make a will will be able to witness your conduct and thought process at the time of the signing. A video recording may also help to combat claims of undue influence. It may also be possible to have your will legally validated before your death.
Perhaps most simply and importantly, communicate with your heirs ahead of time about your estate plan. Many times, heirs do not contest a will out of greed, but because they genuinely believe the will does not reflect the true intent of the deceased. Whether or not a will contest is in good faith or not, it can have a devastating and permanent effect on family unity. If your loved ones know firsthand that your will reflects your wishes, they will be less likely to contest it.
You may also be interested in: