If you anticipate that a disgruntled heir is going to challenge your Last Will and Testament (“Will”) after you die, can you include a “no contest” clause in your Florida Will?
First, let’s be clear. With the exception of spouses, you have every right to devise your property to your heirs as you see fit.
Indeed, there may be very good reasons for leaving one heir more than another, or for leaving someone an asset that is more valuable than what someone else gets.
Quite often we see a disparity in bequests when a beneficiary has an addiction problem or has a number of creditors. Other times there may be loved one who needs more help than other beneficiaries.
But whatever the reason, it is possible that not all of your beneficiaries may be thrilled with the property— or amount of property—you leave to them. Some may feel cheated. Others may think you were unduly influenced to make your Will in the other beneficiary’s favor. And, whether right or wrong, they may contest the Will.
In Terrorem Clauses
“In terrorem” or “no contest” clauses in a Will are designed to discourage disgruntled or disappointed heirs from contesting (or challenging) the terms of a Will. These clauses stipulate that if a beneficiary contests the Will he or she will receive nothing. In other words, they state that the beneficiary will get his or her devise only if he/she does not contest the Will.
Because Will contests are stressful and expensive. They can cost upwards of $10,000 and even as much as $50,000.
Beyond the cost, the fact that Will contests are legal disputes between relatives —often close family members—makes them even more stressful. And their effects can be long lasting. A Will contest can result in lots of hurt feelings that leave family members estranged for years.
Florida Will Contest Basics
The good news—if you can call it good news—is that the law does provide certain restrictions on Will contests which make bringing one not so easy to do.
First, you cannot contest a Will if the testator (i.e., person making the Will) is not dead.
So, if your father/mother/grandparent/brother/aunt/uncle tells you that they have cut you out of their Will, unless that person is dead, you cannot contest the Will.
Next, not just anyone may contest a Will. To be able to contest a Will in Florida, you must be an “interested person.”
While the legal definition of “interested person” is quite broad, generally those who are most likely to contest a decedent’s Will are his heirs and beneficiaries.
Nevertheless, because in Florida “anyone who may be reasonably expected to be affected by the outcome of the proceeding” is considered an interested person, this opens up the possibilities of who may contest a Will.
The next restriction placed on Will contests is that you must have valid grounds for contesting a Will. The most common legal grounds for contesting a Will are:
- Improper execution of the Will
- Lack of testamentary capacity
- Undue influence,
- Duress or
Finally, you must bring your Will contest within a specific timeframe. In Florida, you only have 90 days after receipt of the Notice of Administration to file a Will contest. (Didn’t receive a Notice of Administration? Consult with an experienced probate lawyer to find out what avenues may be available to you.)
Can You Include a No Contest Clause in Your Florida Will?
As touched on above, an in terrorem clause (aka a “no contest clause”) in a Will makes a gift conditional upon the beneficiary not contesting the Will. If he does, then he will get nothing under the terms of the Will.
The clause won’t prevent someone from contesting the Will. The hope is that the penalty for contesting the Will (i.e., losing the inheritance) will deter a beneficiary from contesting the Will. So, for it to work, the gift has to be significant enough so that the beneficiary won’t want to risk losing it by contesting the Will.
Each state has its own laws governing whether or not no contest clauses are enforceable. In many states they are.
In some states, no contest clauses are enforceable in certain situations only. For example, if a beneficiary has probable cause to contest the Will and he wins at trial, then the clause would probably be deemed invalid.
But what about Florida?
Only two states—Florida and Indiana — refuse to enforce a no contest clause. Florida refuses to enforce no contest clauses in Wills or trusts.
If you have a Will that was drafted in a state that allows no contest clauses, it won’t be enforceable in Florida. This is why it is always necessary to work with a Florida probate lawyer to either draft or review your estate planning documents.
In sum, the answer to our question is: no, you cannot include a no contest clause in your Florida Will if you are afraid of a Will contest because in terrorem clauses are not enforceable in Florida.
But there may be other things you can do to prevent frivolous litigation. Speak to an experienced Florida probate lawyer to find out what other tools exist to minimize estate litigation.
Expertly Handling the Florida Probate Issues You Need Help With
If you have probate or estate planning needs, protecting your family is just one phone call away. At the SJF Law Group, we create estate plans as individualized as you are. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. Connect with us on Facebook or Instagram or call us at 954-580-3690.