No-contest clause

No-contest clause in wills

Unless there is probable cause, no-contest clauses are permitted by the Uniform Probate Code.

The UPC has been adopted in several smaller states, including Alaska, Idaho, Montana, and New Mexico, but also by Florida, one of the larger states in population.

No-contest clauses by state

California

In California, no-contest clauses are of limited effect, and will divest a party that unsuccessfully contests a will containing such a clause only if the court determines that the party brought the action without probable cause. Probate Code §§ 21310–21315. These statutes, which comprise California's statutory scheme governing the enforceability of no-contest clauses, became effective January 1, 2010. As of that date, the predecessor statutes are repealed.

Florida

In Florida no-contest clauses in wills are specifically unenforceable, irrespective of probable cause, pursuant to statute. See Fla. Stat. 732.517 (2009) which states:

Massachusetts

Massachusetts General Laws allow for penalty-clause-for-contest language in wills. See M.G.L. Ch. 190B, Art. II, Sec. 2-517.

Nevada

Nevada law specifically directs the court to enforce no-contest clauses. These statutes recognize that a beneficiary may, without penalty, seek enforcement of the will or trust, seek a judicial ruling as to the meaning of the will or trust. The statutes also recognize an exception where legal action challenging the validity of the document is "instituted in good faith and based on probable cause that would have led a reasonable person, properly informed and advised, to conclude that there was a substantial likelihood that the trust or other trust-related instrument was invalid."

New York

New York has rejected the "probable cause" defense to enforcement of such clauses. Such clauses are given full effect upon challenge. Some exceptions apply, e.g. election against the will by a minor, contest on ground of forgery or revocation by later Will.

New York's estates, powers and trusts law specifically states:

Texas

Texas allows for a no-contest clause to be challenged for just cause and provided the action to challenge was made in good faith.

Oregon

Oregon enforces no-contest clauses against losing parties even when there was probable cause to contest the will.

References

References

1. [[Uniform Probate Code]] (UPC) § 2-517. Penalty Clause for Contest, replicated at § 3‑905. Penalty Clause for Contest. Both found at [http://www.law.upenn.edu/bll/archives/ulc/upc/final2005.htm University of Pennsylvania Law School website page on Uniform Probate Code] {{webarchive. link. (June 2, 2009 . Accessed October 5, 2009.)
2. [https://www.law.cornell.edu/uniform/probate.html Cornell Law School website page on Uniform Probate Code]. Accessed October 5, 2009.
3. "CA Codes (Prob:21310-21315)".
4. Fla. Stat. 732.517 (2009).
5. "General Law - Part II, Title II, Chapter 190B, ArticleII, Section 2-517".
6. See [http://www.leg.state.nv.us/NRS/NRS-137.html#NRS137Sec005 NRS 137.005] as to wills and [http://www.leg.state.nv.us/NRS/NRS-163.html#NRS163Sec00195 NRS 163.00195] as to trusts.
7. N.Y. EPTL § 3-3.5 Conditions qualifying dispositions; conditions against contest; limitations thereon, found at [http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS New York state Assembly website, go to EPT Estates, Powers & Trusts]. Accessed October 5, 2009.
8. http://www.statutes.legis.state.tx.us/Docs/ES/htm/ES.254.htm#254.005 Texas Estates Code, Section 254.005.
9. https://www.oregonlegislature.gov/bills_laws/ors/ors112.html, Oregon Revised Statutes, Section 112.272(4).