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No-contest clauses in wills

On Behalf of | Aug 12, 2022 | Estate Planning & Probate

Challenging the terms of a last will and testament can create strife amongst the deceased’s beneficiaries. It can also greatly extend the probate process, tying up the will in probate court for months or years. And, in some circumstances, it can risk the inheritance of a beneficiary who brings the challenge.

What is a no-contest clause?

The concept of the no-contest clause has been a part of wills for a very long time. The formal name of the type of clause, “in terrorem,”  is Latin for “in fear.” This type of clause is sometimes included in a will for the express purpose of dissuading beneficiaries from contesting the will in probate. The clause generally states that, should a beneficiary challenge the will, that beneficiary will be automatically disinherited from the will, either partly or entirely.

How effective are they?

To begin with, no-contest clauses are only effective against named beneficiaries. Anyone who is not already named in the will has already been disinherited – the clause won’t impact them at all.

Mississippi does enforce no-contest clauses, but not in all cases. If a beneficiary brings a challenge to the will, and that challenge is brought in good faith and with probable cause that the challenge will succeed, the court will not enforce it.

Another potential problem for no-contest clauses is ensuring that they are properly drafted. Courts will not enforce the provisions beyond what the language of the clause requires. If the provision is vague, or otherwise poorly written, there is a much greater chance the court will give it no effect.

If you wish to include a no-contest clause in your will, or challenge a will which includes one, only do so with the assistance of a professional who is experienced in Mississippi probate law. They can help to ensure your interests are protected.