Some testators try to avoid probate disputes about the legitimacy of their will by including a provision that anyone who challenges the legitimacy of the will will not be able to receive any distributions from the will. This provision may be called an anti-contest provision or a no-contest provision.
A will is prepared by a testator who sets forth in writing how his/her estate will be distributed when the testator dies. The will is normally prepared by an experienced lawyer. The will should explain who the beneficiary of each asset (real property, bank accounts, retirement accounts, stocks, personal property, and other assets) is and what share will be distributed to each beneficiary. A will should also appoint an executor to handle the probate of the will and the distribution of the assets.
Generally, wills must be in writing, signed by the testator, and witnessed by at least two people.
Common challenges to a will
Wills can normally be challenged by anyone who believes they would have received more if the testator’s true wishes had been followed.
Some of the common reasons a disadvantaged beneficiary may challenge the validity of a will are:
- The will was not properly executed, such as when a will isn’t witnessed.
- The testator lacked the testamentary capacity to decide how the will should be handled, such as when a testator has dementia or Alzheimer’s at the time the will is prepared.
- One of the named beneficiaries used undue influence to pressure or force the testator to change his/her will or write a will. The influence must involve a confidential relationship and the beneficiary must have received more than would be normally expected.
- The testator’s signature is a forgery or deception, or trickery was used to get the testator to sign the will.
Wills can also be challenged if the terms of the will are ambiguous.
What is an anti-contest will provision?
Wills (and trusts) may have provisions that state that anyone who contests a will (whether they are a named a beneficiary or not) will forfeit any part of the testator’s/decedent’s estate.
Testators may legitimately include anti-contest provisions to deter family members from fighting with each other.
Even the most perfectly crafted anti-trust provision doesn’t prevent someone from contesting the validity of a will. The provision only serves as a penalty if the person who contests the will loses. If the will is determined to be invalid, then either a prior valid will determine how the testator’s estate will be handled or the intestate laws of Tennessee will determine how the decedent’s estate will be distributed. The “catch” is that the person who files the contest cannot benefit from the prior will or the intestate laws of Tennessee if that person loses their case.
The anti-contest/no-contest provision doesn’t apply if a beneficiary is not included in a will.
For example, if Dad leaves one son $50,000 and the other son $10,000, the provision applies if the son who receives $10,000 challenges the will. However, the provision would not apply if one son receives $60,000 and the other son receives nothing – because the son who is completely disinherited has nothing to lose. The provision only applies if the person contesting the will loses – not if that person wins.
The probable cause exception
The probable cause theory essentially states that if a person can show they have a valid probable cause for challenging the will (such as that the testator lacked testamentary capacity, undue influence, fraud, or the lack of will formalities discussed above), then that person will be entitled to the share set forth in the will that the probate court rules as valid or the intestate laws of Tennessee. This entitlement applies under the probable cause theory, whether the person filing the contest wins or loses the contest.
Probable cause generally requires more than claiming a lack of testamentary capacity, undue influence, fraud, or lack of formalities. The claim must be supported by some degree of evidence. Each state has its own definition of probable cause of the level of support that is needed.
Anti-contest provisions generally require that:
- The provision is clear and unambiguous.
- The provision can’t unfairly prejudice a rightful beneficiary
- The provision can’t be against public policy or illegal
Another common requirement is that an anti-contest provision must clarify what happens to the beneficiary’s share if his/her claim is unsuccessful.
Will contests can also be filed if the person has probable cause on the grounds of:
- Lack of testamentary capacity
- Undue influence
- Irregularity in the execution of the trust instrument
At Wagner & Wagner Attorneys at Law, our Chattanooga probate lawyers represent executors and beneficiaries in probate contests. We understand when wills are valid and when wills should be held invalid. Our lawyers will explain your rights and assert your rights and defenses in court.
Call us or fill out our contact form to schedule a free consultation. We proudly serve Chattanooga and Cleveland, TN, and the surrounding areas.