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When does a no-contest clause not apply to a will challenge?

People often put no-contest clauses in their wills because they don't want their family members or others fighting over what they see as an unfair division of assets. These clauses may state that anyone who contests a will and tries to invalidate all or part of it is disinherited completely.

This can, understandably, make a family member afraid to contest a will, even if he or she believes that the deceased person was unfairly influenced by someone outside the family. However, if there is probable cause for challenging the will, the no-contest clause won't be enforced.

What constitutes probable cause? Under California law, if a reasonable person would believe that the information known to the person contesting would make him or her be likely to prevail after further information is brought forward, the person contesting the will has probable cause.

Even if a person contesting a will loses in court, if the contest was considered to have a legitimate legal basis and been brought in good faith, he or she won't suffer the penalties of a no-contest clause.

Only a couple of types of contests actually trigger the no-contest clause. One involves contending that the decedent had no right to the property he or she transferred in the will. This can occur in community property states like California.

The other involves claims that a decedent owed money to the person contesting the will if the no-contest clause specifies those types of claims.

No-contest clauses aren't as all-encompassing as many people assume. If you believe that you have a valid reason to contest someone's will, it's advisable to talk with a California estate planning attorney who can help you weigh the pros and cons of doing so.

Source: The Press-Enterprise, "Best in Law: The pros and cons of the no-contest clause," accessed Sep. 28, 2017

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