ARE NO – CONTEST CLAUSES IN WILLS VALID ? — a look at penalty clauses in wills and trying to thwart will challenges, probate litigation and inheritance lawsuits
What if a #FloridaWill says that if you file a #WillContest or otherwise challenge the validity of a #FloridaWill, that you lose your inheritance ?
Q: Is that valid under #FloridaProbateLaw ?
- Say you are left $1 Million under a #FloridaWill, but the Will was changed a day before the person died — changing an older will that left $ 5 Million to you.
- Can you file a #WillChallenge ?
- Do you want to file to #ChallengetheWill if the will says that if you do, then you lose your $ 1 Million inheritance ?
A recent case from Michigan dealt with so called penalty clauses in wills, or No Contest Clauses in Wills.
In the Michigan case, a decision on a #NoContestClause in June of 2013, was appealed, but that state’s Supreme Court denied the appeal of this probate issue: it said that the issues should not be decided by that Supreme Court of Michigan.
There was a dissenting opinion which recited Michigan’s #ProbateLaw which seems to say that a #LastWill can’t have a #NoContestClause — you can’t have a penalty clause in a will that says if someone #ObjectsToTheWill, or files a #WillContest, they lose their #Inheritance. Sort of…………….
Evidently in Michigan, there is a “probable cause” test: it seems that #PenaltyClauses or #NoContestClauses in #LastWills are not valid if there is probable cause to bring a #WillChallenge. If that’s Michigan’s law, then it’s a lot different that #FloridaProbate.
FLORIDA PROBATE LAW DOES NOT LIKE NO-CONTEST OR PENALTY CLAUSES IN FLORIDA WILLS
- The #FloridaProbateCode has a specific state statute, Section 732.517 of the #FloridaProbateCode
- Any clause in a #FloridaWill which penalizes an interested person in the #FloridaEstate from #ContestingTheWill is unenforceable
- You can file a #WillChallenge or #ContestProbate or try to #RevokeProbate
DON’T FORGET…….. PROBATE ATTORNEYS FEES !
But remember, if you challenge a will in Florida or object to Florida Probate, and you lose, you can be charged with the other side’s or the #FloridaEstate’s attorneys fees.
#FloridaEstateLaw has statutes which awards #probatefees and costs in Florida #inheritancelawsuits.
Judges from Palm Beach County, Florida to Ft. Lauderdale to Aventura and Miami Beach know that a losing party to a #FloridaWillContest may have to pay the other side’s #ProbateFees and costs. It does not matter if the #WillChallenge is in good faith or not: what matters is who wins that #probatelawsuit in Delray Beach, Florida over the #BocaRatonEstate.
#FloridaEstatePlanning attorneys seem to still be drafting no contest clauses in #FloridaWills. We see them every now and then, even though they are un-enforceable. Knowing how to deal with them, and knowing how to deal with #EstateDisputes and #ProbateLitigation in Palm Beach estates and Broward County, Florida probates is important.