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Estate Planning

“No Contest” Clauses: Turning “Mr. No” Into “Mr. Yes”

By April 1, 2015No Comments

Every family’s got one. Mr. No. That brother or uncle or nephew who relishes picking a fight. Harvard accepted your daughter? The school’s too chi-chi. Buy a new investment property?
Wrong neighborhood. Your son’s a doctor? CPAs make more money.

You hold your tongue. Family is family. But then comes the big Easter dinner. You hold it together. Until you serve the potatoes, from your mother’s recipe.

Mr. No waves a spudly fork and says you got the recipe wrong. “No more” you think to yourself. “That XXXX challenges everything I do. He’ll even challenge my will!”

For marital harmony, you can’t disinherit Mr. No. So you keep him in your will, but add a “no contest clause”—if Mr. No challenges the will, he gets nothing.

Can you legally do that? Yes, within reason.

Wisconsin law generally allows a will or trust to prescribe a penalty for contesting the document, or bringing related challenges to it—unless the court determines that the challenger has probable cause to do so. The law applies only to interested persons—here, beneficiaries like Mr. No.

If probable cause exists that a will was signed under duress or undue influence, a beneficiary challenging it on that basis won’t jeopardize his bequest (and should be thanked by the other beneficiaries).

But if Mr. No, with no basis, attacks your will because he wants a bigger bequest or doesn’t like your personal representative, a no-contest clause may be enforced. Mr. No might then forfeit his bequest.

A probable cause determination, of course, won’t occur until after you die. And a “no contest” clause may cause rancor among your surviving family members.

Still, a “no contest” clause is one of many tools in an estate planning arsenal. Contact your FOS attorney to discuss the appropriate strategies for your estate plan.