TWO EASY WAYS TO TRIGGER A NO CONTEST CLAUSE BY ACCIDENT
By Noël Margaret Lawrence, Esq.1*
There are circumstances under which a client in consultation with his lawyer will make a conscious decision to contest a will or a trust, knowing that an unsuccessful contest will result in loss of a gift under the contested instrument. The client proceeds nonetheless because he hopes that the instrument will be struck down, and he will inherit under a different, more favorable instrument. The implications of this course of action are usually obvious to attorney and client alike.
By contrast, consider the possibility of taking an action that results in an accidental contest, i.e., one that was not intended or anticipated by the attorney or the client. After the enactment of Senate Bill 1264 of 2008, operative January 1, 2010, practitioners might feel a false sense of security that certain types of actions will not result in the enforcement of a no contest clause to penalize the client.2 Obviously, if a practitioner fails to warn a client that the client’s proposed action constitutesâor could constituteâa contest, and that failure to advise the client results in loss to the client, the attorney has incurred potential liability to the client. It is the kind of liability that will be easy for a jury to understand when the client brings suit against his lawyer. This article will describe some less-than-obvious ways to contest a will or trust for practitioners to be aware of.