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Deterring a will contest: Nevada and no-contest clauses

A recent post discussed the grounds for challenging a will that is offered for probate. A no-contest clause or, as it is also referred to, an in terrorem clause is sometimes inserted into a will to deter beneficiaries from challenging it. The deterrent is that no-contest clauses usually result in the heirs challenging the will forfeiting what they would have received unless the challenge is successful.

Some states refuse to enforce in terrorem clauses, so an heir who commences litigation contesting a will does not suffer any penalty for doing so. Nevada takes a different approach. A no-contest clause in a will offered for probate in Clark County is enforceable as long as it clearly states the intent of the maker of the will.

The intent of the testator must be clear and unambiguous in stating that contesting the will shall result in the reduction or elimination of what the person fling the litigation would have received. State law prohibits the introduction of evidence to clarify or interpret the language of the no-contest clause contained in the will.

The law upholding the enforceability of no-contest clauses contains an exception. Litigation brought by someone raising probate issues or issues regarding the will, such as undue influence, will not result in elimination or reduction of the person’s share of the estate if the will contest was brought in good faith and with probable cause. Probable cause is defined under the law as facts that would lead a reasonable person to question the validity of the will.

The inclusion of a no-contest clause in a last will and testament can raise serious inheritance issues for a person considering challenging its validity. An attorney practicing in the area of estate planning is probably the best source of legal advice as to the enforceability of no-contest clauses.

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