No-Contest Clauses

No-contest clauses essentially provide that anyone who contests a will unsuccessfully will lose whatever inheritance they were to receive under the will. As I blogged last year, Texas law was amended in 2009 to provide that such clauses will not be enforced if a contest is brought with probable cause and in good faith. Professor Gerry Beyer and Benjamin Major have published an article reviewing the current status of no-contest clauses in Texas. Entitled, Are in Terrorem Clauses Still Frightening, the article details the history of their enforcement in Texas. The article also references the reasons given by the bill's author for the need to clarify Texas law:

[to reduce] the chilling effect of in terrorem clauses on a beneficiary’s willingness to challenge testamentary instruments that were created under suspicious circumstances. Also, Rep. Hartnett expressed concerns regarding the demographics in Texas, such as increased life expectancy leading to more concerns about a testator’s mental capacity and vulnerability to undue influence, the trend toward more complicated testamentary dispositions of property caused by the increasing number of Texans dying without children, and the increasing fragmentation of nuclear families due to divorce and subsequent remarriage.

In my opinion, those are all valid reasons for clarifying existing law to provide an exception to enforcement of a no-contest clause if the will contest is brought in good faith and with a reasonable basis. The exception also now explicitly applies to such clauses in trusts. Texas Will Contest Lawyer