Whats a No Contest Clause

It comes as no surprise that often a will or trust may be contested. Will and trust disputes frequently take years and add mountains of fees to the cost of administration. For some, a “no contest clause” may seem like an easy solution, but not in Florida. Here is a quick run down on no contest clauses:

•  A no contest cause is a provision in a document that penalizes any interested party seeking tocontest or somehow challenge the validity of the instrument.
• These clauses are sometimes referred to as in terrorem clauses.
• Generally, a no contest clause penalizes a person contesting the will or trust by providing that theperson loses all rights to receive any gift or devise under said will or trust.

As a matter of public policy, Florida law invalidates no contest clauses in wills and trusts.

Florida Statute §732.517 provides that “[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.”

Similarly,Florida Statute §736.1108(1) provides that “[a] provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable.”

Recent decisions in Florida by the Courts show no intention of moving away from that policy any time soon.

In Dinkins v. Dinkins, 120 So.3d 601 (Fla. 5th DCA 2013), Florida’s Fifth District Court of Appeals cited well-established law in its decision, noting that no contest clauses are invalid: “Under a no contest clause, in order to receive the devise, the beneficiary must forfeit the right to contest the instrument. But that right is essential to the integrity of the estate disposition process, because beneficiaries must be able to obtain, and courts must be able to provide, a determination of the instrument’s validity. Cf. Restatement (Third) of Prop.: Wills & Don. Trans. § 8.5 cmt. b, para. 2 (2003). Thus, a beneficiary cannot be forced to choose between the right to contest an instrument and the right to take under it, and this public policy is codified in section 736.1108(1) and its probate analogue, §732.517.” Dinkins at 603.

Florida statutory and decisional law clearly prohibit no contest or in terrorem clauses in wills and trusts.