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When Should a No-Contest Clause Be Added to a Will?

Fri, Nov 04, 2022 at 1:43PM

When Should a No-Contest Clause Be Added to a Will?

Many people draft a will to protect and provide for their loved ones and dependents. They hope that after they pass, all of their surviving loved ones are satisfied with their respective allotments. 

In some situations, though, the deceased may have been aware of family dynamics that would suggest one or more parties may challenge terms of the will they deem unfavorable. To prevent this, many people ask for a “no-contest clause” to be added to their wills and trusts.

If your loved one established a no-contest clause in their will and you believe there is a reason to contest the will or the clause, an estate planning attorney in Daytona Beach can help you learn more about your legal options.

No-Contest Clauses in Florida

A no-contest clause is a provision that prevents a beneficiary from inheriting anything if they challenge the will and lose. These clauses have been part of estate law, in some form or fashion, for centuries. They can be an attractive way for individuals to ensure that their financial wishes are followed after they pass.

The intent behind a no-contest clause is to protect the wishes of the deceased and to discourage will challenges from unsatisfied relations who burden probate courts with frivolous cases. 

Will challenges can also be a waste of money, as the cost of the defense against the challenge may come from the estate itself, further reducing the amount beneficiaries receive.

Can My Daytona Beach Attorneys Create a No-Contest Clause for My Will?

Although your estate planning attorney may include a no-contest clause in your will, if you’re a Florida resident when you die, that part of the document will likely be invalidated by Florida probate courts. 

The Florida Supreme Court determined that no-contest clauses may be inherently unfair — especially if a beneficiary has good reason to believe that their loved one was not of sound mind when the will was created or that they were a victim of undue influence by another party.

Florida law states that any provision in a will that is intended to penalize any interested party for filing a will dispute is unenforceable. Furthermore, Florida law views trusts in the same manner.

Why Would Someone Include a No-Contest Clause If These Clauses Are Invalid in Florida?

Although Florida laws invalidate no-contest clauses in wills and trusts, that doesn’t mean that the clauses are no longer used. There are a few reasons these clauses are included in estate planning documents.

First, the deceased may have drafted the will while living in another state and later moved to Florida without updating their estate plan

A will is executed in the probate courts of the state where the person legally resided when they died. So your loved one may have planned their will in a state with enforceable no-contest clauses, but since they died in Florida, the clause is no longer valid.

Alternatively, perhaps the deceased knew that a no-contest clause would be unenforceable in Florida but was banking on the beneficiaries being ignorant of Florida probate laws. Or, perhaps the individual hoped the clause would serve as a deterrent.

Whatever the reason for the inclusion of a no-contest clause in a will, if you believe that there was a problem with your loved one’s will or that you didn’t receive your appropriate share of assets, consult with Daytona Beach attorneys experienced in estate planning.

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