Back to: INHERITANCE, ESTATES, & TRUSTS
Non-Contestability Clause Defined
The non-contestability clause refers to a will provision that states if any beneficiary challenges the clauses of the will in a court, they will be disinherited. This clause intends to keep order during the settlement of an estate inherited by the heirs after the death of the owner. In the U.S., if the person contesting the clauses of the will have a probable cause of doing so, the non-contestability clause is not enforceable.
Another popular use of the no-contest clause is in insurance contracts. This clause prohibits an insurer from challenging the enforceability of an insurance contract after a certain period of time.
A Little More on Non-Contestability Clauses in Wills
The Uniform Probate Code states, “a provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings”.
Setting up a trust for distributing an estate is often more effective than a will as it is more difficult to challenge the validity of a trust than to challenge a will. So, an individual seeking estate distribution may choose a trust over the will. It helps to distribute the estate as the owner desired without any contest. A trust provides more protection and a simpler vehicle for distributing the estate. Generally, the assets placed under a trust do not have to go through a probate process.
A pour-over will, along with a trust provides further protection as it allows to move any remaining assets in the estate into an existing trust. The appointed trustee ensures the assets are allocated and distributed properly according to the trust document.
Non-contestability in the insurance policy
A non-contestability is a life insurance policy requires the insurance company to challenge any information provided in the application for the insurance within a specific time period. Generally, the company may annul an already-issued policy within that time period (typically two years) if they find any material misinformation in the application. The non-contestability clause is included in the policy terms to prevent the insurance companies from denying the benefits to the policyholder on the basis of misinformation while the claim is made.
References for No Contest Clauses
Academic Research on No Contest Clause
Declaratory Judgments: Avoidance of Peril: Refusal to Adjudicate Rights of Will Beneficiary under No–Contest Clause, Raimi, B. L. (1962). Michigan Law Review, 61(1), 191-196. According to this paper, the declaratory judgement which was given against the avoidance of peril and the refusal to adjudicate rights according to the willing beneficiary under the No-contest clause were both explained.
Wills-No Contest Clause-Acceleration of Remainders, Hodosh, F. R. (1951). NDL Rev., 27, 422. This paper explains the wills assumption as regards the No contest clause via the theory he called the acceleration of remainders. This paper, however, explains this theory and hypothesis were made as regards the no-contest clause.
Wills: Assertion of Rights under Mortmain Statute as Violation of No–Contest Clause, Davenport, W. K. (1952). Michigan Law Review, 50(4), 625-627. This paper also explains the accretion of rights under the Mortmain statue which means a violation of the no contest clause. According to this paper, the wills assumptions were also considered and several explanations and theories were postulated.
No-Contest-Clause in Estate Instruments: Contests in CA Probate Codes and Cases, Lee, E., & Jordan, D. This academic research paper explains the no contest because according to the contest in CA which was carried out by probating the cases and codes. This paper was aided by the estate instrument.
Scope and Effectiveness of No–Contest Clauses in Last Wills and Testaments, Leavitt, J. (1963). Hastings LJ, 15, 45. This academic paper explains the effectiveness and scope of the no-contest clause according to the last testaments and wills.
No-Contest Clauses: Issues for Drafting and Litigating, Swank, D. M. (2000). Colo. Law., 29, 57. According to this paper, several issues such as litigating and drafting which possess as a stumbling block for the no-contest clause was explained and diverse solutions as to how to solve these problems/issues were suggested.
No-Contest Clauses in Wills, Reed, R. C. (1961). U. Pitt. L. Rev., 23, 767. This paper explains the clauses and problems associated with Will’s theory of the no contest clause.
The Will Contest, Jaworski, L. (1963). Sw. LJ, 17, 371. This academic paper explains the will contest in a more simplified manner and also different reasons and problems facing the no contest clause were investigated and their solutions were also given in this paper.
Wills: Validity of No–Contest Clauses in Wills, Kuelthau, R. E. (1959). Marquette Law Review, 43, 528. This research paper explains the validity of the no-contest clause in the will’s theory and also the vital information to note regarding the no-contest clause.
Preparation and Trial of the Will Contest, Jaworski, L. (1967). Ark. L. Rev., 21, 87. According to this paper, the trial and preparation of the will contest was explained and their solutions were mapped out.