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No-Contest Clause

By Anne K. McMichael

 

Preparing a will can seem complicated, but understanding terms and phrases, makes the process easier. For example, you may have heard of a no-contest clause in a Will. A no-contest clause generally states that a person will be disinherited (i.e. not receive an inheritance from an estate) if they challenge the contents of a person’s Will. A no-contest clause may be a good idea if you have a beneficiary (i.e. someone you designate to inherit something from your estate) who may be upset by the property distributed to him or her. However, no-contest clauses only work if you are willing to leave something of value to the potentially disgruntled person. In other words, you must leave the individual enough so that a challenge is not worth the risk of losing the inheritance.

In Colorado, provisions in a person’s Will meant to penalize a beneficiary for contesting the terms of the Will may not be enforced if the beneficiary has probable cause (valid reason) to challenge the Will. Colorado Courts have defined probable cause, in the context of attacks on wills and trusts, “as the existence at the time of the initiation of the proceeding, of evidence which would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the contest or attack will be successful.” Of course, whether probable cause exists to challenge a Will is determined on a case-by-case basis.

If you want to include a no-contest clause in your Will, it should explicitly state what acts by your beneficiaries are prohibited, and how the estate will be distributed if the no-contest clause is to go into effect. Other things you should consider to keep your will from being contested include:

  • Hiring an attorney to draft your Will to ensure your wishes are clearly stated;
  • Sign and notarize your Will in the presence of Witnesses that are not family members;
  • Discuss your wishes with family members; and
  • Avoid utilizing fill-in-the-blank forms for your Will that may not clearly convey your wishes.

If you need guidance about no-contest clauses and including one in your Will or Living Trust, contact Anne McMichael via email at mcmichael@ccrjlaw.com or call 303-572-4200.

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