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While it is impossible to take away a person's right to his day in court, it is quite possible to discourage him from exercising that right by giving him something to lose if he makes that choice. Because of the lack of anticontest provisions in most wills, in the majority of will contests the contestant has nothing to lose except the expenses of waging the contest.

Anticontest Provisions for Wills

An effective way to discourage is to include an anticontest provision (also called a noncontest provision, a forfeiture clause, and an in terrorem clause) in the will. In simple terms, provisions of this type say that anyone who contests the will automatically forfeits any bequest made to him under the will. This provision is quite enforceable in most states. A noncontest clause will be useless, however, to prevent an omitted beneficiary from contesting the estate unless he has something to lose, and this is the price you may pay to discourage the contest.

To make the clause work, the amount at risk must be a meaningful amount to the beneficiary. Including a noncontest clause in your will does not mean that a contest is legally prohibited. It merely means a contestant will lose his share of your estate if he attempts to interfere with the probate of the will. If the contestant is willing to risk that loss and the contest is subsequently successful, the presence of the noncontest provision will be moot, because the will itself would have been overturned. If you do decide to include a noncontest clause in your will, you must be sure to prove what will happen to the forfeited bequest if a beneficiary does contest. This is called a "gift-over," and without it, the clause will be invalid.

Probable Cause for Contesting a Will

A number of states provide that a noncontest clause will not be enforced against a beneficiary who is found to have probable cause for his contest. In many other states, however, a noncontest clause can be effective, regardless of whether the beneficiary had probable cause to contest the will. In other words, in the "probable cause" states, even if you had a noncontest provision, the beneficiary could contest the will and still receive his bequest even though he loses the contest, provided he had good cause for filing the contest. What constitutes probable or good cause will depend on the facts of each case.

Agreements with the Beneficiary

As infrequently as noncontest provisions are used, agreements with the beneficiary are even more scarce, with one exception -- marital agreements. Premarital, postmarital or separation agreements usually contain a provision that neither spouse will contest the will of the other. Since fair consideration was given for this promise, it will be enforceable and can be sued to prevent or stop a will contest in violation of its provisions.

Where beneficiaries other than a spouse are concerned, however, the occurrence is quite rare. Nevertheless, if somehow the unusual circumstances arise, it is possible to enter into an enforceable agreement with the beneficiaries not to contest your will.

Passing Property Outside of Probate

Your will relates only to property that is in your probate estate. It follows, therefore, that the contest of a will affects only the property in your probate estate, and that property passing outside your probate estate may not be affected by the will contest. If you do not want a beneficiary to inherit, placing property into a living trust during your lifetime may be a consideration. You maintain control over all the trust assets during your lifetime and provide in the trust that, on your death, whatever remained would pass directly to named individuals.

Breaking a Living Trust

Although a trust is not impossible to attack, it is far more difficult to attack than a will. A will does not take effect as a legal instrument until the death of the testator and, even then, not until the probate court has allowed it. A trust, on the other hand, becomes effective and operative as a legal instrument as soon as the settlor (the person who creates the trust) places assets into it. Since he does this during his lifetime, and since the trust is operating with his full knowledge and, in most cases, control, it is difficult for a contestant of the trust to argue that the settlor lacked the capacity to do it, that he was unduly influenced, that it was improperly executed, or that someone fraudulently induced him to set up the trust.

Attacks against living trusts are less successful than a will contest because the contestant has no leverage. That is, though a will contest, the contestant can tie up the assets of the estate for years, preventing everyone from getting the full benefit and use of the property. As a result, the estate has an incentive to settle with contestants just to get rid of them and begin enjoying the property. When the assets are in a living trust, however, the contestant, except in rare cases where trust assets are rapidly disappearing, has no right to tie up the trust assets while he is attacking the trust, and so the existing trust beneficiaries can go on enjoying the benefits despite the contest. Because of all this, trust contestants usually find themselves wasting a good deal of time and money only to find that they have little or no chance of breaking the trust.

Trust Anticontest Provisions

If you want to double your protection against a contest, you can also consider including an anticontest provision in your trust as well as your will. All of the same rules and considerations relative to the inclusion of the anticontest provision in wills apply to its inclusion in trusts. And this includes the necessity of giving the contestant something to lose. That is, as with a will, if you want to discourage a beneficiary from contesting the trust, you should make a bequest to him, conditioned upon his agreement not to contest or attack the trust.

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