Personal relationships between spouses or between parents and children can be complicated. Sometimes, for a variety of reasons, a person in our state may wish to make sure their final wishes are honored by their spouse or child by inserting a “no-contest” cause in their will. A no-contest clause generally states that a person will be disinherited if they challenge the contents of the testator’s will. However, are such clauses enforceable here?
Under Colorado law, provisions in a person’s will meant to penalize an heir for contesting the will may not be enforced if the heir has probable cause to challenge the will. This is similar to the “probable cause” rule found in the Uniform Probate Code. Of course, whether probable cause exists to challenge a will is determined on a case-by-case basis.
So, while no-contest clauses may be legal, they may not always be enforced. Those who want to include a no-contest clause in their will may want to ensure that the person affected by the clause stands to inherit. An outright disinherited person generally will not be affected by a no-contest clause. No-contest clauses should also explicitly state what acts are prohibited and how the estate will be distributed if the no-contest clause is to go into effect. This is because no-contest clauses are sometimes strictly construed by the courts. The testator’s intent for including the no-contest clause should also be made clear, to emphasize that the testator had the mental capacity to execute such a provision and that the testator’s intent was not defamatory.
Keep in mind that state law on no-contest clauses varies. Moreover, what constitutes “probable cause” to make a no-contest clause unenforceable is not discussed in this post. Therefore, those who wish to include a no-contest clause in their will or those who wish to challenge one will want to seek legal guidance, so they better understand what their rights are in such situations.