No-Contest Clause: A Practical Definition

January 19, 2017

A no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. is also referred to as an in terrorem clause and as a “penalty clause” in Wisconsin. At its simplest, it is a clause in a last will and testamentSee Will., trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries., or other “governing instrument” that provides a penalty against any beneficiaryA person who will receive something, possibly cash or real estate or personal property, through a Will or trust or income from a Will or Trust. A beneficiary can be a Specific Bequest beneficiary or a Residual beneficiary. who challenges the willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause., trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. or other governing instrument.

A typical no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. in a last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. would provide that a beneficiaryA person who will receive something, possibly cash or real estate or personal property, through a Will or trust or income from a Will or Trust. A beneficiary can be a Specific Bequest beneficiary or a Residual beneficiary. who challenges his or her distribution or distribution amount is eliminated from the last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries.. For example, a last will and testamentSee Will. might say that a beneficiaryA person who will receive something, possibly cash or real estate or personal property, through a Will or trust or income from a Will or Trust. A beneficiary can be a Specific Bequest beneficiary or a Residual beneficiary. who is given $10,000.00 willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. lose his or her share if he or she challenges the last will and testamentSee Will..

As a no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. is typically used in a last will and testamentSee Will. or in a trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. in Wisconsin, we willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. limit our discussion to its use in these two documents. It is also important to note that the relevant laws on no-contest clauses vary from state to state. Our focus is solely on the relevant Wisconsin no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions..

Wisconsin’s No-Contest Statute

Unlike many states, Wisconsin has a specific no contest clause statute that is specifically applicable to last wills and testaments and to trusts. The Wisconsin statute, Wis Stats 854.19, reads as follows:

854.19 Penalty clause for contest. A provision in a governing instrument that prescribes a penalty against an interested person for contesting the governing instrument or instituting other proceedings relating to the governing instrument may not be enforced if the court determines that the interested person had probable cause for instituting the proceedings.

Clearly, there is a lot of information in that one sentence statutory provision. So, we’ll look at the most important issues that relate directly to the use of a no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. in our estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. practice. We willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. not attempt to define “interested person” in depth in this article, but for our purposes, think of “interested person” as someone who would receive property upon your death due to being named in a last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries.. In addition, think of “interested persons” as the people who would receive property upon your death or if there were no last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries., such as your children or spouse (so called “heirs-at-law”).

Limitations on Enforcing No-Contest Clauses

Clients often believe that a no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. prevent someone from challenging a last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries.. However, there is no bullet proof protection provided for a no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. in Wisconsin. Wisconsin is among states that allow a no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. to not be enforced if the challenger has probable cause for challenging the last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries.. That is, if someone had a reasonable basis for challenging your last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries., the no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. not be enforced. This is true even if the challenger ultimately lost his or her challenge – and your last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. was upheld by the court. If the challenger had probable cause for the challenge, the no-contest penalty would not be enforced against the challenging party.

However, if a beneficiaryA person who will receive something, possibly cash or real estate or personal property, through a Will or trust or income from a Will or Trust. A beneficiary can be a Specific Bequest beneficiary or a Residual beneficiary. were to challenge his or her share or amount without probable cause, the no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. could reduce or eliminate the challenger’s inheritance under the last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries..

Is a No-Contest Clause Right for Everyone’s Last Will and Testament or Trust?

For most clients, there is no need for a no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions.. Where necessary, our clients completely eliminate “heirs-at-law” that they do not want to include in their last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries.. In other words, most of our clients choose to leave nothing to interested persons who they do not want to receive anything. Therefore, if a son or daughter, for example, is “cut-out” of the last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries., there is no benefit to including a no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. since the son or daughter already receives nothing.

So, no, a no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. is not right for most of our client’s last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries.. In addition, some clients might feel overly protected if their last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. has a no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. in it. As set forth above, the no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. has major limitations in Wisconsin.

When Is a No-Contest Clause a Good Idea?

If an interested person is likely to attack a last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. because he or she feels entitled to a bigger share, doesn’t like your trusteeThe person or company named in a trust to manage property and assets of a trust. Usually a trust will name an initial trustee or co-trustees and successor trustees. A trustee has the duty to act in the best interest of the person for whom they are managing the funds and is considered a Fiduciary. Most people that set up Revocable Trusts to avoid probate, name themselves as Trustee and also name successor trustees to take over upon death or upon incapacity. or personal representativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives., or simply to make the administrationA process during which the deceased persons assets pay debts, claims and funeral expenses and the remaining estate funds are then distributed according to the wishes of the deceased person set forth in the Will or Trust. The Administrator is in charge of the process and must follow what is set forth in the Will or Trust. If there is no Will or Trust, the distributions and payments are made according to the law of the applicable state and is called intestate succession. process difficult, then a no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. may be appropriate. Sometimes a client expects that a certain child or spouse willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. feel entitled to more than he or she willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. be given. Perhaps a client appreciates that a certain child is always difficult and willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. try to cause trouble, but that child is still to receive a share of the probateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. estate. In these situations, a no-content clause may prove helpful.

Where a person to be included is a known trouble maker, it can make sense to add a no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. in your last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries.. Why? A child who stirs up trouble or feels entitled to more than his or her siblings, may be unwilling to challenge your choices and risk losing his or her share of the inheritance. The no-content clause may stop that individual from challenging your final wishes if he or she knows that he or she may lose and get nothing from you.

The Right Solution for You

There is no one size fits all answer for determining when to use a no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions.. Our estate planning lawyers review each client’s unique situation to consider the many estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. questions and options. A no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. is just one of the tools that we use, where appropriate and beneficial, when discussing and preparing our client’s estate plans.

Conclusion

A no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. in a last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. can be enforced in Wisconsin. However, if there is a reasonable basis for challenging a last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries., the no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. not be enforced even if the challenger loses. As such, the use of no-contest clauseA clause in a Will or Trust that creates a penalty for anyone who sues to attempts to obtain more from the probate estate or trust estate then provided for in the Will or Trust. A common no-contest clause will revoke an inheritance in whole or in part if that beneficiary of the Will or Trust challenges the Will or Trust or attempts to obtain more than stated in the Will or Trust. No contest clauses are generally not favored, in many circumstances, by courts and are not permissible in all states. However, No-Contest Clauses are legal in Wisconsin with many legal restrictions. is limited in Wisconsin. Still, the clause may provide some protection against a beneficiaryA person who will receive something, possibly cash or real estate or personal property, through a Will or trust or income from a Will or Trust. A beneficiary can be a Specific Bequest beneficiary or a Residual beneficiary. who challenges a last will and testamentSee Will. or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. without any reasonable basis for the challenge.

Contact us and we can help sort out what type of estate plan is right for you. Our attorneys willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. work with you to determine what estate planning tools and options are best for you.