Nothing, nada, zero, zip: The ins and outs of no-contest wills | SierraSun.com

Nothing, nada, zero, zip: The ins and outs of no-contest wills

Jim PorterLaw in Review

Weve all heard of the so-called No Contest clause in a will. The writer of the will, the testator, states that if anyone contests the bequest going to them, that person receives nothing. In some cases, the will recites that the person receives one dollar. Makes one think twice about contesting a will.

Robert Wells left his assets to his five children, naming them in his trust, which in this case is essentially a will. Wells apparently liked some of his children better than others. He left Robyn, Judith and Dianne $50,000 each, leaving the rest of his apparently substantial assets to his children Robert, Jr., and Elizabeth. But thats not all.The trust originally had the standard no-contest clause stating that if any of the five beneficiaries contested the trust, then that beneficiary would be specifically disinherited. They would receive nothing, nada, zero, zip. But Wells amended the no-contest clause to state that if any one of the three daughters Robyn, Judith or Dianne contested the will, specifically the $50,000 inheritance to each of the three, then the bequest to all three daughters would be revoked. If one sister contests, none of the three inherit. As you have guessed, Robyn contested the will putting the gifts to herself, Judith and Dianne in jeopardy.For more than 100 years, California cases and statutes have generally upheld the validity of no-contest clauses in wills that disinherit a contesting heir. No-contest clauses discourage litigation and give effect to the intent of the testator, the will writer. Thats good public policy.

The California Legislature, however, recognizes that certain challenges to wills should be allowed, like those alleging forgery and fraud (such as self-interest of the will drafter or witnesses). The law also allows will beneficiaries to challenge wills if there is a contestable issue of public policy.In those limited circumstances, beneficiaries of wills may contest the will without risking their inheritance.

Robyn challenged the no-contest clause, claiming it was against public policy to draw up the will so that if one of the three daughters unsuccessfully challenged the will, the other two would lose out as well. She felt it was unfair. In fact, it was Robyn who challenged the will and put the $50,000 inheritance of her two sisters at risk.

The court concluded the no-contest clause did not violate public policy, noting that wills and trusts often contain terms that are unfair, such as where the testator gives nothing whatsoever to a dutiful child while giving the entirety of a large estate to the dutiful childs unworthy sibling. Courts will not rewrite wills to reflect the courts own sense of justice. Robert Wells intended what he wrote.Because Robyns will challenge was a question of public policy, Robyn, Judith and Dianne will still receive $50,000 each. Makes sense to me. Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at porter@portersimon.com or at the firm’s Web site: http://www.portersimon.com.