New Texas Law Regarding Forfeiture Clauses
Many testators try to discourage potential will contestants by leaving them a modest amount in the will, while providing that bequest will forfeit if the beneficiary files a will contest. These in terrorem or "no contest" clauses are construed narrowly by Texas courts, but they do sometimes discourage even well founded contests. Such clauses will now be more difficult to enforce. On June 19, 2009, Governor Perry signed HB 1969, which became effectively immediately. It amends the Texas Probate and Trust Codes to provide that no-contest clauses will not be enforced to forfeit a devise if the contest to the will or trust is brought: 1) with probable cause; and 2) in good faith Some Texas appellate decisions had at least hinted that forfeiture would not apply if the contest was brought with probable clause and in good faith, but the Texas Supreme Court has never directly addressed the issue. While probate litigators will no doubt wrangle over what constitutes probable cause and good faith, this codification provides needed clarity. Some estate planners will argue that this is not a good change to the law because it will encourage more will contests and frustrate the intent of testators. However, those of us who litigate in this area see far too many cases of new wills being executed just after the testator has suffered a stroke or is in the grip of Alzheimers or other dementia. Will contests in Texas.