Want to Contest a Will based on Public Policy? Learn what Contrary to Public Policy really means.

There are a variety of ways to invalidate a will in Florida including alleging undue influence, fraud, duress, mistake and that a will is contrary to public policy. Often people have a lot of confusion about what the last term really means, and a case coming out of the Mississippi Supreme Court last year helps put this confusing clause into simple English. 

• The case centered around a will contest between a brother and sister.
• The sister claimed that the brother exerted undue influence (meaning he overcame the true intent of his father and that such influence was improper or undue) and that thewill disinheriting her was invalid.
• The sister lost and the will had a no contest clause, which I have previously mentioned in other posts. Basically this clause said that if any heir contested the will they forfeited their rights to an inheritance.
• The sister then appealed to a higher court that the forfeiture clause (sometimes called a no contest clause) was invalid as a matter of public policy.

The clause in question here read as follows:

If any beneficiary hereunder (including, but not limited to, any beneficiary of a trust created herein) shall contest the probate or validity of this Will or any provision thereof, or shall institute or join in (except as a party defendant) any proceeding to contest the validity of this Will or to prevent any provision thereof from being carried out in accordance with its terms (regardless of whether or not such proceedings are instituted in good faith and with probable cause ), then all benefits provided for such beneficiary are revoked and such benefits shall pass to the residuary beneficiaries of this Will….

Even experienced probate litigators dispute what the lines of public policy truly are. After all the point of a will is to exercise the testator’s intent, yet public policy can infringe upon that right in certain circumstances.

This recent case noted that a potential heir who brings a contest in good faith and uponprobable cause should not forfeit his legacy, as “[h]e has been engaged in helping the court to ascertain whether the instrument purporting to be the will of the testator is such.” As such it was argued the no contest clause was contrary to just this policy and as such was invalid.

Note the legal jujitsu that just occurred, the fact that the contests may affect the intent meant that the intent to have a no contest clause could be invalidated!

1. In Florida Courts do not enforce no contest clauses, even if there is a “good faith exception” built in.
2. If you are not sure whether or not a devise in your will is considered against public policy sometimes a simple application of common sense is enough, but as this case illustrates that not always the case. Always consult an experienced attorney.