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?