Should I include a no-contest clause in my will?

On Behalf of | Aug 23, 2022 | Estate Planning |

When you execute a will, you want to ensure that your last wishes are carried out in the way you see fit. What you don’t want is infighting amongst your relatives or challenges to your will which may drag out the probate process. You may consider adding a no-contest clause to help prevent these problems – but will it work?

What is a no-contest clause?

Formally known as an “in terrorem” clause, no-contest clauses have been around for a long time. In terrorem is Latin for “in fear,” and the intention of the clause is to strike a level of fear in beneficiaries, to dissuade them from bringing a challenge to the will.

A no-contest clause includes language which penalizes a beneficiary if they do challenge the will – by automatically disinheriting that beneficiary if they bring a contest. It is the risk of disinheritance which is designed to make the beneficiary think twice before acting against your wishes.

Do they work?

No-contest clauses have limits to their effectiveness. For starters, they operate only against named beneficiaries in the will. Someone who is not already in the will cannot be disinherited; therefore, the clause will not dissuade them.

More importantly, Arizona statutorily limits the effectiveness of no-contest provisions. If a beneficiary challenges your will, and that challenge is based upon probable cause, courts will not enforce the disinheritance. So long as the beneficiary has a good faith believe that their challenge is likely to succeed, they need not fear a no-contest clause.

As a result, no-contest clauses are mostly effective against frivolous challenges to your will, but they won’t stop everything. If you’re considering adding such a clause to your will, speak to a professional who is experienced in Arizona estate planning.