No Contest Clauses in Wills
Many wills now contain what is called a “no contest” clause: wording in a will that attempts to prevent parties from squabbling over assets and delaying the probate process. They do so by disinheriting anyone who brings an action against the estate or the personal representative of the estate.
These clauses create a problem for those who stand to inherit from the will. Sure, they keep fighting to a minimum, but what if there is a genuine problem with the will? Those who wish to contest the will must choose between disinheritance and letting the problem go.
The problem is that no contest clauses rarely work. They do not work, for instance, to dissuade an individual from contesting a will if there is no reason to contest the will in the first place. If they were to do better or the same under the will as under Arizona’s intestacy statutes (which would kick in should your will be invalidated), there is no incentive for contest.
Only in those cases where an individual is likely to be offended and contest would you want to add a no contest clause to your will. In other situations, those involved either have no incentive to contest the will, or would only do so because there was a genuine mistake.
Another problem with no contest clauses is that the courts are against them. In Arizona, no contest clauses are unenforceable if the contesting parties have a good reason, or probable cause, for their claim. This is true, regardless of the eventual outcome of their dispute, as long as the court determines that there is some merit to their claim.
However, every case is different, and these matters are complex. It is important to talk to a qualified and experienced attorney to see what your options are, whether you are considering challenging a will, or creating one.