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Wiley & Mathews
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Can you challenge a last will if there's a no-contest clause?

Conflict within a family can have a direct impact on how people plan for their last will and estate. For example, if a parent remarries and knows that there is a lot of tension between their children and their new spouse, they may worry about how the children will behave after they die. Other times, people may only leave a fraction of their assets to their spouse and may worry that their partner, not their children, will challenge their wishes.

One of the best ways to protect against unnecessary challenges to a testator's wishes is to include a no-contest clause in their last will. If you are a beneficiary or heir in an estate, bringing a challenge when there is a no-contest clause in the will could mean losing out on your inheritance.

How do no-contest clauses work?

No-contest clauses serve as a way of underscoring someone's intention to have their estate plan followed closely after their death. People often include them if they suspect their family will fight over their assets or be unhappy with the contents of the last will.

No-contest clauses are sometimes called in terrorem clauses because they are meant to create fear in the other parties in the document regarding the potential penalties for violating the terms of the clause. Avoiding probate challenges can preserve the overall value of the estate as well as the intent of the person leaving behind their legacy.

Typically, a no-contest clause will either fully disinherit someone or reduce the amount of the estate they will receive. By creating a real and immediate financial consequence, testators prevent family members from fighting needlessly over their estate.

How do the Ohio courts view no-contest clauses?

Each state has its own laws for estate administration and probate, as well as court precedent from years of hearing cases and interpreting the law. In Ohio, the courts typically choose to uphold no-contest clauses regardless of why someone brings a challenge.

In some states, if the person challenging the estate plan has probable cause or good faith when they bring the challenge, the courts can choose not to enforce the no-contest clause. In Ohio, regardless of why someone brings a challenge, the courts are likely to enforce the no-contest clause at that time.

A no-contest clause reduces your options but doesn't eliminate them

If you believe undue influence or a similar issue affected the last will that your parent or loved one left behind, you may feel intense frustration if there is a no-contest clause affecting the estate. However, there may be other options to protect your inheritance.

Talking with an experienced Ohio probate and estate law attorney can help you determine what options you have.

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