No Contest Clauses: Unenforceable in West Palm Beach Probate Court

Are you considering contesting a will in West Palm Beach?   Does the will contain a forfeiture or penalty clause that may disinherit you for contesting the will? Did you know these are not enforceable in Florida? Do you know why?

No Contest Clauses

• No contest clauses also sometimes called in terrorem clause is a clause inside an otherwise valid West Palm Beach will that basically punishes someone who challenges the will.
• Guess what the punishment usually is?
• Most of the time it is disinheritance, in other words you forfeit your rights under the will.
• Most states have created a good faith defense or probable cause defense to these issues.
• What does this mean?
• A litigant may challenge a will with a no contest clause and still take under the will in these states if he had probable cause to do so.
• What constitutes probable cause, we leave that to those state’s courts.
• Why does a West Palm Beach court never have to consider this?
• Because as a matter of public policy these clauses cannot be enforced by the courts.

Why Are No Contest Clauses Unenforceable in Florida

• Florida courts are charged with following a testator’s intent as long as it is pro-public policy.
• The problem with these clauses is that clearly it is the intent of the testator that they be enforced but enforcing them may chill attempts to challenge wills.
• Since the whole point of a will contest is to measure the document against the testator’s true intent, chilling that goal may be bad for public policy.
• As a result West Palm Beach courts will not enforce any contest clauses regardless of the punishment whether it be total or partial forfeiture.
• Do you agree is the policy right?
• Should you be able to have a no contest clause?

Why No Contest Clauses Can Be a Problem

• One of the most common ways to challenge a will is to show undue influence.
• Do you know what undue influence is?
• When one party is influencing the other through improper means, a will drawn up under such influence clearly does not reflect testator intent.
• That will should not be admitted into probate.
• If you were going to exercise undue influence and get a West Palm Beach testator to give you everything in the will, would you want it challenged?
• Absolutely not, so what would you do?
• That’s right adding a no contest clause.
• See the problem?
• On the other hand wouldn’t these clauses keep the courts less clogged?
• What do you think?