Kansas Court of Appeals Case: What is a No Contest Clause?

Are you concerned that your relative’s will may be  invalid due to lack of testamentary capacity? Are you concerned about undue influence? Is the only reason you are not contesting the will is you are afraid it could result in you losing your inheritance under the no contest clause? Are these enforceable in Florida? The answer may surprise you.

No Contest Clauses

• In West Palm Beach a probate judge cannot enforce a no contest clause.
• Do you know what a no contest clause is?
• In West Palm Beach there is some wills that contain something known as an in terrorem or ad terrorem clause.
• These clauses basically say that anyone who challenges the will is not entitled to take under it.
• This sounds like a great deterrent to setting aside a will no matter how improper admitting it is right?
• Most jurisdictions have carved out the just cause exception to these clauses.
• Basically if a probate judge determines you had good cause you would still inherit even if your will contest was unsuccessful.
• Do not worry about that in Florida.
• Do you know why?
• Because in Florida these clauses cannot be enforced by judges!
• So what is the point of adding such a clause to your will?
• Some people may not know this little rule and this could act as a deterrent.
• Are these clauses unenforceable every where?
• Well, no the truth is it depends.
• Check out this case out of the Court of Appeals in Kansas.

In re Estate of Mahoney

• This was an appeal from a will contest in the probate court of Kansas.
• The challenger was found to lack probable cause.
• This meant that the challenger lost out under the no contest clause of the will.
• Is it fair that it is the judge who decides if there was probable cause?
• Can they take into account all the facts of the will?
• A better question, is who is better suited for the job?