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Do No Contest Clauses in Wills or Trusts Work?

On Behalf of | Oct 15, 2012 | Publications & Presentations

Do No Contest Clauses in Wills or Trusts work? The short answer, not too well. Previously, if an omitted heir could establish that he had probable cause to challenge the no contest clause (such as the writer of the Will was under mistake or undue influence), the court would allow a challenge to the Will and not enforce the no contest clause. In a recent case, In Re Estate of Stewart, the Arizona Court of Appeals stated that if the no contest clause prohibited devisees or beneficiaries from assisting the omitted heir, the court would interpret this as enforceable as long as the beneficiary was deposed or subpoenaed. The beneficiary cannot “voluntarily” give information to the omitted heir where the no contest clause prohibited it. This ruling causes The Cavanagh Law Firm Attorney, Sharon Ravenscroft, to ponder, once the omitted heir establishes probable cause does the beneficiary have to be subpoenaed or can the beneficiary provide information under the disclosure rules which do not require a subpoena? To be careful, when a no contest clause is involved, beneficiaries should ask to be subpoenaed before giving information.