Wills and Trusts are estate planning documents created by an individual for various reasons which usually include distribution of that person’s assets to specific people, called heirs or beneficiaries, upon the death of the person creating the will or trust.
The unfortunate reality is that heirs, beneficiaries, or other persons who were omitted from the will or trust may want to challenge or contest the will or trust after the person who created it has died.
This is called a will or trust contest. The reasons for will and trust contests vary and depend upon the factual circumstance of that will or trust and the person who is contesting it. By example, a common reason for a will or trust contest is that an heir or beneficiary from the will or the trust feel as if they were slighted by the decedent in some way and feel they deserve more than what they were given. Another common reason to contest a will or trust occurs when a person is omitted from receiving an inheritance, either intentionally or by mistake and wishes to challenge the will or trust in order to obtain some kind of inheritance. Sometimes there are multiple and different copies of the decedent’s estate planning documents, creating ambiguities in the distribution of the assets. Sometimes wills and trusts are contested as being not legally binding or invalid because of perceived fraud or undue influence by one heir or beneficiary over the decedent at the time the estate planning document was created. Other times, wills and trusts are contested because an heir or beneficiary believes the person who created the will or trust did not have the mental capacity to do so at the time. Regardless of the reasoning, contesting a will or trust is a complicated and expensive process.
One way a person who creates a will or trust can firmly establish their wishes as designated in their will or trust, e.g., division of property among the heirs or beneficiaries, etc., is to ensure that their will or trust contains a “no contest clause.” This is because a no contest clause is usually written so that if there is a contest of the validity of the will or trust and that contest is brought without probable cause, then that person bringing the challenge or contest will be disinherited. In essence, a no contest clause is typically drafted to prevent frivolous challenges or contests of the will or trust.
Properly drafting a legally operative and binding no contest clause in a will or trust is a complex legal matter.
Also, properly drafting a will or trust or other estate planning document entirely is a complex legal matter and each should not be taken lightly. As such, it is strongly advised anyone considering creating an estate plan, revising their current estate plan, considering adding a no contest clause to their estate planning documents, or would like further information on this topic should contact the Chilina Law Firm or another experienced California attorney focusing on estate planning, trust administration, or probate for further information.
Authored by Greg Chilina and Co-Authored by Karen Chilina
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