Contest Provisions-It's ok to be competitive, just not over your estate.
Updated: Nov 24, 2020
Planning for the future has to include planning to avoid fights. Specifically, the fight over who gets mom’s wedding dress, or why John gets 51% and Jane only got 49%, or why Sandra is the Executor and not Tommy. There are some easy ways to avoid people fighting over your estate planning documents, but lets talk about Contest Provisions.
A contest provision is a special provision in a will or trust that basically says:
“If you don’t like what we have created here, and you try to contest it, you will be disinherited.”
I know. It sounds like it would work as a great deterrent for anyone thinking about fighting over the estate, and in truth, I think it does work well to dissuade some people from taking legal action. However, in Utah Law “a provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.” (Utah Code §75-3-905).
So, are they effective or not? Well the real answer to that is going to be two fold. First, is the person you think might contest your estate plan in a position to do so? Does he or she have the funds to finance the litigation? Are they going to cause a scene just to force you to settle with them? There are plenty of cases out there where the litigation over an estate ends up costing everyone anything they would have inherited anyway. Even if you end up winning, you will have spent part of your inheritance defending the claim and essentially disinheriting the contesting party.
The second question to consider is “what is probable cause, and how can I make sure there isn’t any?” The basic way to understand if there is probable cause to fight the creation of the will or trust is to ask if there is anything questionable about the creation or management of the will or trust. Was the testator (person who made the will or trust) of sound mind when they created it? Was it their intent? Were they under some influence of someone that may have impacted the distribution of assets?
These are the preliminary questions to see if your contest provision is going to work.
We help each client prepare for a dispute of this type. We do this in a few ways: first, we set up the proper paper trail that includes invoices, a signing letter that states that we have reviewed your plan with the client and they understand it. Second, we meet with each client in their home and ask multiple questions as to their intent on how they want their affairs to be handled. Third, each document is customized to the client’s intent, which offers evidence that it is not a “form document” or other forced document. Finally, we are happy to help you speak with your beneficiaries about your plan. A lot of contest lawsuits can be avoided by just holding frank, sincere conversations about your intent, and how you want things to work. You can read another article we wrote that deals with this specifically here.
Daybell Law, PLLC is an estate planning law firm. We come to you, where you are most comfortable, and customize your estate plan based on your family’s current situation. Give us a call at 435-777-4740, contact us through email at firstname.lastname@example.org, or look us up on social media through the links below.
We look forward to showing you how it feels to be your attorney’s top priority!