Absolute Trust Talk Live: The “No Contest” Clause and Other Myths

You’ll find no shortage of captivating stories in estate planning. Tales of barely legible handwritten notes found in obscure places detail an elderly decedent’s wish to bequeath a sizable fortune to someone they had only recently met.

Accounts of a wealthy decedent becoming estranged from a family member and leaving them out of their estate, then capping things off with a “no contest” clause in their will or trust — often accompanied by a one-dollar payment that the inheritor stands to lose if they do contest the decedent’s wishes — is perhaps the example we hear most often. When taken literally, it sounds a little suspect. After all, the risk of losing a single dollar isn’t going to be much of an impediment for a scorned family member who feels left out and decides that contesting the estate plan that put them there is the only recourse.

And yet, we all know that family estrangements happen fairly often. Life is complex and so are family dynamics. As we all chart our own individual courses, some family relationships fray, while others grow stronger and it’s not surprising that these shifts are often memorialized in estate plans, with some family members receiving far less than the others, or even nothing at all.

So where does the truth lie? Is it really possible to freeze a family member out of an estate and insert a “no contest” clause to safeguard from challenges?? Do “no contest” clauses truly hold up in the real world, or would that aforementioned family member have recourse if they find themselves in that position? Do things change if that heir sincerely feels that the decedent had been unduly influenced, or even preyed upon by an opportunist — family member or otherwise — and can offer what they believe to be proof of this bad intent?

For the answers to these questions, as well as several others that often crop up during the course of estate planning, tune into our latest episode of Absolute Trust Talk. Kirsten Howe will be speaking with trust and estate litigation attorney Jennifer Herlihy, who is unusually well-positioned to weigh in on these matters. As a partner at Walnut Creek-based Koller Herlihy, LLP, she centers her practice on trust and estate litigation, contested conservatorships, financial elder abuse actions, and other casework that’s often behind the volatility we so often hear about in trust-related cases.