Does a "no contest" clause in a Will protect the Will from being challenged by an unhappy heir or beneficiary?

Does a "no contest" clause protect a Will from a challenge? A no contest clause is a common provision that is meant to dissuade a beneficiary from contesting a Will. Most no contest clauses generally say that a beneficiary who challenges a Will will receive nothing, or have their share drastically reduced to a nominal amount, such as a dollar.

The key to an effective no contest clause is to offer some kind of incentive. In other words, a would-be challenger must receive enough under the Will to have something meaningful to lose. If the incentivizing bequest is too small, the clause will be of little help. For example, an heir who receives a small bequest in the context of very large estate will likely be more inclined to risk losing it for a chance to have a much larger share because they have nothing to lose anyway if they don't prevail. In an estate of many millions, involving heirs of considerable means, no contest bequests may need to be significant to effectively counter an unwanted challenge, especially where emotions may be running high.

Often beneficiaries will read a Will with a no contest clause and conclude that they must accept the terms, or risk losing their inheritance. On the flip side, testators generally assume that no contest clauses in their estate planning documents will always be enforced. However, a no contest clause does not always mean that no contest is possible.

Here in Washington, courts generally respect no contest clauses. For instance, in In re Estate of Rathbone (2018), the Washington Supreme Court upheld a no contest clause in a Will, where the testator had included a broadly worded no contest provision and also specifically named the beneficiary who was likely to challenge. Although the trial court and appellate court held that courts were allowed to interpret the provisions of the Will and thereby permitted the anticipated challenge to proceed, the Supreme Court reversed the lower court decisions, stating that courts should show restraint when the testator’s intent is so clearly stated.

It is important to note, however, that the Court said its holding in Rathbone was supported by the particular facts of the case, where a son was specifically named in the Will as a potential challenger. Therefore, the decision is probably better viewed as strongly encouraging judicial restraint from interpretation, not a blanket statement that all no contest clauses are per se enforceable in Washington. In fact, the case law reveals that such clauses are not enforced in all circumstances - there are always exceptions. For instance, Washington courts have held that a “no contest clause is inoperable if the challenger brings his or her contest in good faith and with probable cause.” In re Estate of Chappell (1923); In re Estate of Kubick (1973); and In re Estate of Mumby (1999). In practice, this means generally that a challenge will be respected and not result in disinheritance when the plaintiff has proceeded following the advice of a lawyer, provided they have fairly and fully disclosed all of the material facts and the contest.

In addition, a no contest clause may be drafted in such a way to afford some flexibility, allowing enforcement in certain circumstances – for instance, if there has been a breach of fiduciary duty. A challenge may be permitted also if it is brought forward on public policy grounds.

Regardless of the side you’re on, careful consideration should be given to the specific language of no contest provision, the nature and size of bequest that is at risk, and the character and inclinations of the persons involved.

Finally, it is important to note that the enforcement of no contest clauses is jurisdictional, with some jurisdictions, such as Idaho and Oregon, enforcing no contest clauses more strictly and others like Washington being less strict.

If you have questions about no contest clauses or Will in general, give us a call at 253.858.5434 to set up an appointment today. We represent clients throughout Washington and Idaho and are available to meet in person (with appropriate social distancing protocols in place), by phone, or via video conference.