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Can You Put a No-Contest Clause in Your Living Trust or Will?

When you think of a ‘no-contest’ clause, you are likely thinking about employment contracts. But the term ‘no-contest’ applies to several types of legal action and probably does not mean what you think it means. 

The noun contest has the accent on the first syllable. However, the verb to contest has the accent on the second syllable. Under the law, a no-contest clause prevents any stakeholder from filing a suit to contest the terms of a contract. These contracts even include estate planning devices like wills and trusts.

In terms of wills and trusts, it prevents the contestor from acquiring whatever was bequeathed if they attempt to contest the will or trust. The stakes tend to be quite high when an heir contests a will or trust. Hence, the court will take its time determining if the contestor has a valid claim, and if not, if the no-contest clause is enforceable. 

What Happens When an Heir Contests a Will or Trust?

In Indiana, no-contest clauses are only enforceable when the contestor loses the claim or the claim is deemed invalid. In reality, no-contest clauses are rarely enforced. This is because the contestor either wins their claim and the clause is deemed unenforceable or the heirs settle the matter outside of court in which case the no-contest clause is ignored.

What Happens if the Contestor Loses?

Even when the contestor loses, so long as they have made the allegation based on probable cause, they will not lose their right to their inheritance. A contestor can make allegations in earnest based on fraud, undue influence, or claim that the descendant was not in their right mind when they drafted the will or trust. In these cases, if they can provide any evidence at all that there was reason to believe that something invalidated the will, the no-contest clause will not be enforced. In most of these cases, the contestor will be relying on the advice of their attorney to determine whether or not to proceed. Since the attorney is making the call, the contestor is usually insulated from forfeiting their right to an inheritance based on a no-contest clause, even if they lose.

Hiring an Attorney to Draft Your Will or Trust Avoids Key Problems

The enforceability of a no-contest clause in Indiana relies heavily on the language drafted in the legal documents. While there are legal limitations to what you can enforce under the law, you can ensure that a contestor meets a specific standard when contesting a will. That means that they would have to have probable cause or a factual basis for contesting the will or any of its provisions. A well-drafted will or trust can force a contestor to find a factual basis for any claim they make. If even one claim is made that does not have a factual basis, then the court may enforce the no-contest clause and strip them of their inheritance.

Talk to an Indiana Wills and Trusts Attorney Today

For more information about drafting wills and trusts, please contact Christopher L. Arrington today to schedule a free consultation and we can discuss your needs in more detail.

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