[WSBAPT] in terrorem/no contest clauses in Wills
ROBERT MILLSAP
rem3 at nwlink.com
Tue Apr 8 14:05:28 PDT 2014
I tell people that it has a chilling effect. I researched it once and
found one old case that enforced it in egregious circumstances. In short,
pure greed. There may be more recent cases though. It has been awhile
since I researched it in all candor.
My conclusion was that unless there is an absence of grounds to object so
that it amounts to bad faith, the court will not enforce a no contest
clause. Any reason that is credible or equitable would void the clause I
concluded.
If it is a disinheritance clause, I thinks it is best to name any person
who is an heir to minimize the chance that someone can argue that the
testator did not know the natural objects of their bounty.
I think we all use these clauses fairly routinely which seems fine in the
majority of cases. Sometimes unusual facts suggest some specialty
drafting though. A CIR might be such the unusual facts. I am scratching
my head though. Is a CIR an inheritance right or a claim against the
estate where inheritance rights have no bearing? I think it is a claim.
ROBERT MILLSAP
MILLSAP LAW FIRM, P.S.
7016 35TH AVE NE
SEATTLE, WA 98115
206-583-2740
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Tuesday, April 8, 2014 1:11 PM
To: wsbapt at lists.wsbarppt.com
Subject: Re: [WSBAPT] in terrorem/no contest clauses in Wills
Although I don't have citations, it has been my understanding that there
is appelate cases which hold that such clauses are not enforceable
(unlawful restriction of right to be heard in court ... etc.) so I tell
people that its fine to put this in a will if you want but that it is
probably not going to be honored by a judge.
Joshua F. Grant
Attorney at Law
P.O. Box 619
Wilbur, WA 99185
t 509 647 5578
f 509 647 2734
----- Original Message -----
From: Carla Higginson <mailto:carla at higginsonbeyer.com>
To: wsbapt at lists.wsbarppt.com
Sent: Tuesday, April 08, 2014 12:28 PM
Subject: RE: [WSBAPT] in terrorem/no contest clauses in Wills
In my view, the in terrorem clause does not automatically create a right
to receive notice of the estate proceedings. That right comes with being
named as an heir. It only provides that anyone who contests the will
receives $10 (or whatever) instead of their regular bequest, or the share
they might have otherwise taken if a will challenge is otherwise
successful.
_________________________
Carla J. Higginson, Attorney | Higginson Beyer, P.S.
Friday Harbor Office:
175 Second Street North, Friday Harbor, Washington 98250 | Telephone:
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carla at higginsonbeyer.com
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-----Original Message-----
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Tuesday, April 08, 2014 12:13 PM
To: wsbapt at lists.wsbarppt.com
Subject: Re: [WSBAPT] in terrorem/no contest clauses in Wills
Agree with Richard.
Sent from my Samsung Mobile
Richard Wills wrote:
What am I missing or misunderstanding???
Why leave a Will contestant any nominal amount, eg, $1 or $10 etc. That
means that they remain interested in the estate, entitled to notice, & due
a distribution, even if only $1, for which the PR will need to obtain from
the contestant a Receipt (& good luck in getting it). Why not simply
"remove 'em," as Big Julie in Guys & Dolls would do?
This does not address giving a disfavored heir a nominal amount to induce
them not to file a Will contest, as suggested by Mr. Edensword-Breck.
That really goes to the issue of dealing with a disinheritance clause, not
a Will contest clause, which I believe to be two different animals.
On 4/8/2014 10:43 AM, Jennifer Johnson wrote:
I’m also interested to hear more about this. We have used the following
provision for a while. We usually tell clients that we haven’t had the
opportunity to test it in court yet, and that it’s value may largely be in
its deterring effect.
If any devisee or legatee herein, or anyone not named and provided for
herein, shall directly or indirectly contest or dispute the provisions of
this Will, or maintain before any judicial body that this is not my Last
Will and Testament, or call into question before any tribunal or judicial
body the provisions of any legacy, bequest, devise or provision herein to
said person or persons and declare the same to be void and of no effect,
then I give said legacy, devise, bequest or provision so revoked to the
remaining child named herein or their children, per stirpes, who does not
so contest this Will. In the event that such person contesting this Will
shall prevail, then in that event I hereby give, devise and bequeath to
such successful contestant the sum of one dollar ($1.00) in lieu of any
other provision for such person made herein.
Jennifer
--
Jennifer M. Johnson
Attorney
P.O. Box 39 / 68 Main Street
Cathlamet, WA 98612
(360) 795-3494
[X]
On 4/8/14 10:30 AM, "Heather deVrieze" <
<mailto:heatherd at westseattlelaw.com%3ceatherd at westseattlelaw.com%22>
heatherd at westseattlelaw.com<eatherd at westseattlelaw.com">> wrote:
Mind sharing the one you think is bad? This is a good topic of discussion
of what works/doesn’t, etc.
Heather S. de Vrieze
Attorney-at-Law
[X]
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500
<mailto:heatherd at westseattlelaw.com%3ceatherd at westseattlelaw.com>
heatherd at westseattlelaw.com<eatherd at westseattlelaw.com"> <
<mailto:heatherd at westseattlelaw.com> mailto:heatherd at westseattlelaw.com>
<http://www.westseattlelaw.com> www.westseattlelaw.com <
<http://www.westseattlelaw.com/> http://www.westseattlelaw.com/>
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<mailto:wsbapt-owner at lists.wsbarppt.com>
mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of G. (Gus) Benjamin
Lindsey III
Sent: Tuesday, April 08, 2014 10:09 AM
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wsbapt at lists.wsbarppt.com<sbapt at lists.wsbarppt.com">
Subject: [WSBAPT] in terrorem/no contest clauses in Wills
Good morning,
I am updating a Will for a client. The existing will has a no contest
clause that the client likes; however, I believe it is overly broad and
somewhat inconsistent with the law. (And has given the client a false
sense of security!)
I plan to discuss the pros/cons of keeping this clause but I suspect that
the client will want something due to past experiences within the family.
Does anyone have a concise no contest clause that they use and would be
willing to share.
Thanks!
Sincerely,
G. (Gus) Benjamin Lindsey III
Attorney-at-Law
[X]
The Law Office of G. Benjamin Lindsey III
2012 Grade Road, Suite 202
Lake Stevens, WA 98258
Phone: (425) 263-9585
website: <http://www.gbl3law.com> www.gbl3law.com <
<http://www.gbl3law.com/> http://www.gbl3law.com/>
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