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“No Contest Clauses” in the Commonwealth of Virginia

No Contest Clause: a provision in a will to the effect that the legacy or devise is given on condition that no action is taken to contest the will; and if such action is initiated, the legacy or devise is forfeited. Black’s Law Dictionary at 944 (5th ed. West, 1979).

Note: No Contest Clauses are also commonly referred to as “In Terrorem Clauses”

Purpose

No contest clauses are designed to prevent a beneficiary, legatee, or devisee from challenging the validity of a testamentary document. The no contest clause acts as a condition upon the gifts contained in the testament. Such conditions generally state that, should a beneficiary choose to contest the validity of the testament, the contesting beneficiary’s gift is voided and is to be otherwise distributed (usually as though the contestant had predeceased the testator.

Reason for Utilizing a No Contest Clause

Virginia Code § 64.1-88 grants a statutory and equitable right to contest the validity of a will or testamentary papers.

No Contest Clauses are therefore generally recommended for inclusion in testamentary documents which carry a risk of challenge by a particular beneficiary or group of beneficiaries. A no contest clause may prevent not only a challenge to a testator’s carefully thought out distribution scheme, but also save the estate and family members enormous sums which would otherwise be incurred in legal fees to fight such a challenge, and most importantly, it may prevent the discord and infighting which so often accompanies a challenge to a Last Will and Testament or Trust instrument, thereby preserving the family relations and bond, which are after all our most important legacy.

How a No Contest Clause Prevents a Challenge

A no contest clause acts a disincentive to potential contestants by forcing beneficiaries to make a difficult decision. A beneficiary may either 1) accept what has been provided for him within the terms of the document, or 2) he may challenge the validity of the document and potentially forfeit any inheritance or benefit there under. By requiring beneficiaries to make such a choice, no contest clauses can prevent would-be contestants from taking action adverse to the testator’s desires.

This, of course, means that a potential contestant must actually be provided with some benefit under the terms of the will or trust. When a testator totally disinherits an heir-at-law or a beneficiary under a previous testamentary document, the disincentive has no effect on such individuals. Therefore, in order to receive a benefit from a no contest clause it is important to provide those individuals one believes most likely to challenge the will or trust with some gift or inheritance to create a sufficient disincentive to the challenge.

The sufficiency of the gift and the likelihood that it will prevent a potential challenge must be determined based upon the facts and circumstances surrounding a testator’s estate after thorough consultation with a knowledgeable estate planner.

Enforcement of No Contest Clauses in Virginia:

Under Virginia law, no contest clauses are generally considered valid and enforceable provisions in testamentary documents. Such provisions are effective not only when included in Last Will and Testaments, but also when written into Trust documents which are intended to comprise part of an estate plan. Michie’s Jurisprudence, Wills §§ 134 and 135 (2004); Womble v. Gunter, et al., 198 Va. 552, 95 S.E.2d 213 (1956); Keener v. Keener, 278 Va. 435, 682 S.E.2d 545 (2009).

No contest clauses are strictly construed and enforced. As a result, precisely what actions constitute a challenge or contest depends upon the words used in the no contest clause at issue, as well as the facts and circumstances of each specific case. However, as a general rule, resort to the means provided by law to challenge the validity of a testamentary document is a contest pursuant to such a clause. Michie’s Jurisprudence, Wills §§ 134 and 135 (2004); Womble v. Gunter, et al., 198 Va. 552, 95 S.E.2d 213 (1956). It is also generally the case that once a beneficiary acts to violate a no contest clause, later withdrawal of that challenge cannot remedy the beneficiary’s prior actions. Even though the challenge has ended, the no contest clause remains effective against the beneficiary. Michie’s Jurisprudence, Wills § 135 (2004).

Virginia Courts recognize the validity of these provisions to carry out the testator’s intent to the greatest extent possible. It has been stated that “the normal freedom of the owner to dispose of his property as he sees fit should not be curtailed unless the disposition violates some rule of law or is against public policy.” Womble v. Gunter, et al., 198 Va. 552, 95 S.E.2d 213 (1956).

The manner in which no contest clauses are enforced in Virginia is yet another reason why these provisions should be drafted through careful consultation with an attorney familiar with the relevant statutes and controlling case law. By carefully crafting an in terrorem clause to fit a testator’s particular desires, needs, and concerns, an attorney can help ensure that when the testator leaves this life, his or her estate can be administered without interference.

Final Thoughts

It should be observed that no contest clauses only serve as a deterrent to challenges to testamentary documents. If a stubborn heir or beneficiary insists on proceeding with court action to challenge a Will or Trust, the no contest clause will only act to disinherit that individual upon his or her loss of the court case. To hold otherwise would lead to incoherent legal policies. If a no contest clause outright prohibited any challenge to the validity of a testamentary document, the statutory rights of interested parties to the estate or trust would be violated. Such a prohibition would likely be against public policy because it would permit completely invalid and indefensible documents to be probated or administered merely because they contained no contest clauses, regardless of the absurdity even on the face of such instruments.

Although these provisions do not prohibit challenges, their use combined with other techniques as advised by a competent estate planner, can greatly reduce the likelihood of a challenge and may preserve not only an estate’s assets and value, but the unity of a family.

Richard W. Hartman III, Esquire

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