No Contest Clause in Wills: Should I Have It In My Will
Let’s talk about the no contest clause in Wills. Should your Will have one?
Amid the hostile political environment in current-day Kenya, a rather unexpected twist entered the conversation about the impeaching of Vice President Rigathi Gachagua; his late brother’s Will.
In his Will, which seems to be quite fair and considerate to all beneficiaries, including the second wife, children born from other women in his life, his mother, and brother, the VP, Nderitu Gachagua included a no contest clause. In short, the clause stipulated if any of the beneficiaries contested the division of assets as laid in the Will, they’d automatically be disqualified from any inheritance.
Talk about a clever way of stopping the family wrangles that ensue!
So, what exactly is a No Contest Clause? Here’s everything you need to know about this clause to add an extra layer of protection to your estate planning.
Wills 101
As Benjamin Franklin once said, nothing is certain except death and taxes. We will all leave this world; that’s certain. The question is, how will you handle your affairs, especially the division of your assets, from the beyond?
One of the best ways to protect your beneficiaries and have your wishes met in death is with a Will.
A Will, also sometimes referred to as the Last Will and Testament, is a legal document drawn to stipulate the treatment of one’s assets when they are no longer here. Without a will, you’re leaving decisions up to state laws and courts, which might not reflect your desires. A will puts you in the driver’s seat, even posthumously.
Related read: Wills 101: How To Write a Will In Kenya
What is a No Contest Clause In a Will?
While a Will allows you to leave instructions about the treatment of your assets, it doesn’t mean everyone in your life is going to accept it with open arms. If any of your beneficiaries is unhappy with the division of assets, they can challenge your Will in court.
Unfortunately, this is a common occurrence. This leads to a legal battle, which can be costly, lengthy, and too tedious a process, especially for people who are already in mourning.
The good news is that there is a legal way to reduce the chances of someone contesting your Will.
Enter the No Contest Clause!
A No Contest Clause, also a “forfeiture clause” or an “in terrorem” clause, might sound like something straight out of a legal thriller, but its purpose is pretty straightforward. This clause is a stipulation you can include in your Will that says if someone challenges your Will and loses, they won’t receive anything you’ve left them. Essentially, it’s your way of saying, “Trust my decisions, or risk walking away with nothing.”
How Does It Work?
Think of a No Contest Clause as a peacekeeper among your beneficiaries. It’s there to deter anyone from stirring up legal battles over your Will. If a beneficiary believes they were shortchanged or excluded unfairly, this clause makes them think twice before dragging the estate through a costly and emotional court dispute.
The risk? If they challenge the Will and fail to win their case, they could forfeit whatever you had originally left them.
While the No Contest Clause is not a magic bullet that eliminates all potential conflicts, it does add a layer of protection for your decisions.
Benefits of Including a No Contest Clause in Your Will
A No Contest Clause offers several advantages that can provide peace of mind and ensure your estate is distributed according to your wishes. Here are some of the key benefits:
Deters Frivolous Challenges
First and foremost, a No Contest Clause acts as a strong deterrent against unnecessary legal disputes. It’s a precautionary measure that can discourage beneficiaries from contesting your Will on whimsical grounds.
The risk of losing their inheritance often makes potential challengers think twice, ensuring that only serious concerns—those they’re willing to potentially forfeit their share over—are brought before a court. This feature keeps your estate’s distribution smooth and as conflict-free as possible.
Saves Time and Money
Legal battles over Wills can be lengthy and expensive. Legal fees can quickly eat into the value of your estate, diminishing the amount that ultimately goes to your beneficiaries. Not forgetting the many months or even years spent in court battling it out.
A No Contest Clause helps ensure your assets are used the way you intended—supporting your loved ones or favored causes—rather than paying attorney fees and court costs. This clause helps maintain the financial integrity of your estate by potentially reducing the number and severity of legal challenges.
Upholds Your Final Wishes
You’ve taken the time to carefully plan how you want your assets distributed; a No Contest Clause helps ensure that these wishes are respected. By minimizing disputes, this clause acts as a reinforcement of your decisions, giving them a better chance of being executed without alteration. It’s about preserving your voice and the choices you’ve made for your estate.
Protects Vulnerable Beneficiaries
If you have vulnerable beneficiaries, like children, someone with special needs, or an elderly individual, etc., a No Contest Clause can help protect their inheritance from potential challenges. It ensures that their portion of your estate is safeguarded and that they receive the funds or assets they’re entitled to.
Limitations of the No Contest Clause
While a No Contest Clause can be a powerful tool, there are certain situations where it might not be enforceable. It’s important to be aware of these exceptions:
Not Foolproof Against Legal Challenges
While a No Contest Clause can deter beneficiaries from contesting your Will, it isn’t an absolute shield against legal challenges. If a beneficiary has a strong, legitimate concern—perhaps suspecting undue influence or a lack of mental capacity at the time of drafting the Will—they might still decide to proceed with a contest.
In such cases, if the court finds their claims to be valid, the clause might not prevent them from receiving their share of the estate, despite the challenge.
Doesn’t Apply to Everyone
Unfortunately, this clause doesn’t apply to an individual(s) not named in the Will as a beneficiary(ies). For such people, contesting the Will doesn’t cost them the inheritance since they are not named as beneficiaries anyway. However, contesting the Will makes them stand a chance of inheriting, especially if they win.
Potential for Unenforceability
The effectiveness of a No Contest Clause can vary based on local laws and the specifics of individual cases. Some jurisdictions may have restrictions on enforcing such clauses, especially if they are deemed to be against public policy or if the challenger has a reasonable cause for contesting the Will. It’s important to understand how these clauses are treated in Kenyan law to gauge the level of protection they can offer.
Alternative to a No Contest Clause: Family Trusts
While a No Contest Clause is an excellent tool to deter beneficiaries from contesting your Will, there is a more powerful alternative to consider: a family trust.
How Does a Family Trust Work?
A Family Trust is a legal arrangement where you transfer your assets to a trustee, who manages them for the benefit of your beneficiaries. The trustee can be a trusted individual or a professional fiduciary.
Benefits of a Family Trust
- Avoids probate – placing your assets in a family trust helps your beneficiaries bypass the probate process, which naturally reduces the likelihood of public disputes and can streamline the transition of assets.
- Provides privacy – trusts are generally private documents, unlike Wills, which can become public records. This can offer a level of privacy for your personal affairs.
- Offers flexibility and control – trusts can be structured in various ways to meet your specific needs and goals. For example, you can specify that beneficiaries receive their inheritance at certain ages or upon meeting specific conditions, which can be particularly useful in managing younger or financially inexperienced beneficiaries. A No Contest Clause does not offer this level of detailed control; it primarily acts as a safeguard within the broader instructions of your will.
- Protects assets from creditors – if you’re concerned about creditors or potential lawsuits, a properly structured trust can help protect your assets.
No Contest Clause vs a Family Trust: What’s the Best Option
The decision of whether to use a No Contest Clause or a Family Trust depends on your individual circumstances and goals.
If you’re primarily concerned about preventing disputes among beneficiaries, a No Contest Clause may be sufficient. However, if you want to avoid the probate process, maintain privacy, and have more flexibility in how your assets are managed, a Family Trust might be a better option.
It’s important to consult with an estate planning attorney to determine which approach is best suited for your needs. They can help you understand the benefits and drawbacks of both options and advise you on the most effective way to protect your assets and ensure that your wishes are carried out.
FAQ
What exactly is a No Contest Clause?
A No Contest Clause is a provision in your Will that states that if anyone contests your Will, they will forfeit their right to inherit from it. This can help prevent disputes and ensure that your wishes are carried out as intended.
Can I add a No Contest Clause to my existing Will?
Yes, you can add a No Contest Clause to your existing Will. It’s recommended that you consult with an estate planning attorney to ensure that the clause is properly drafted and enforceable.
Can a No Contest Clause be challenged?
In certain circumstances, a No Contest Clause can be challenged. For example, if it can be proven that your Will was obtained through fraud or undue influence, or if you lacked the mental capacity to make a valid Will at the time it was executed.
Is a No Contest Clause the only way to prevent disputes?
No, a No Contest Clause is not the only way to prevent disputes. You can also consider establishing a Family Trust, which can help avoid the probate process and provide more flexibility in how your assets are managed.
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