If you’re afraid your heirs might challenge your Will, you can add a no contest clause to protect your wishes.
With this clause in your legal arsenal, your beneficiaries likely won’t risk challenging your Will and losing everything you left them. They may, however, first seek a court judgment as to whether a claim would trigger this no contest clause (as recently issued in the case of Hunter v. Hunter).
Here’s everything you should know about a no contest clause and how it’s enforced in Virginia.
What is a no contest clause?
In a Will, a no contest clause — also known as an in terrorem clause — is intended to prevent beneficiaries from challenging any terms. For instance, let’s say you have a child who is a bit of a spendthrift. If you leave them $20,000 and they challenge the Will to try to get more and end up losing, they no longer have the right to claim even just the $20,000 under the terms of the no contest clause.
Most of the time, these clauses make clear that if a beneficiary does decide to challenge the Will (and loses), they will not receive anything allotted to them. However, some states include caveats to the clause that make it unenforceable, thereby minimizing its influence in such conflicts. These laws exist to ensure that the writer of the Will maintains control over the contents as they are outlined, discussed, and eventually distributed to its recipients.
No contest clauses under Virginia law
In regard to Virginia’s specific statutes surrounding no contest clauses, there are key factors to remember. Many of the no contest clauses are written broadly, with some even choosing to include a disinheritance if any challengers take actions that could interfere with the administration of a person’s estate or trust. More often, no contest clauses are drafted in a narrow manner and only directly apply to challenges of a Will or trust.
An ongoing discussion about Virginia’s no contest clauses comes down to whether a no contest clause closely adheres to Virginia’s state laws. If a no contest clause is drafted with broader wording, it is more likely to be challenged in court. In contrast, a carefully drafted no contest clause leaves little room for any beneficiaries to find a good enough reason to challenge your Will.
In the case of Hunter v. Hunter, the Virginia Supreme Court approved of an alternative-pleading model for trust beneficiaries. The beneficiary may first seek a declaratory judgment from the court to determine whether their proposed challenge would trigger a no contest clause, and then decide whether to proceed with prosecution. In practice, this ruling can clarify the terms of the no contest clause, potentially reducing the likelihood of your Will being challenged in court.
Why would you use a no contest clause?
No contest clauses could be useful should you choose to make some last-minute changes to the Will. Generally, the best reason to insert a no contest clause, should this problem ever arise, is if you have good reason to be afraid that a close (and most likely disgruntled) relative would contest the contents of your Will after your death.
Additionally, including a no contest clause leaves you more room to make the changes you wish to your Will and estate administration without worrying about having it questioned or changed in a way that is unsatisfactory to you.
Need help drafting a no contest clause to include in your Will? Contact the Law Office of Patricia E. Tichenor to schedule a complimentary consultation.
