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Reviewing the validity of no contest clauses

For those beginning the estate planning process in Miami, the ultimate goal is to create an inheritance plan that reflects their true wishes, while also being able to avoid disputes between their beneficiaries. The said reality is, however, that it is often impossible to please everyone, especially when it comes to estate matters. Thus, will contests can be a common occurrence. 

Some of those preparing their wills may believe that they can eliminate the potential for such a dispute by adding a no contest clause. Such a clause basically says that anyone who choose to contest the terms of a will risks being disinherited. Most may assume that a testator has every right to this; after all, his or her will should be reflection of his or her wishes, not matter what those may be, right? 

The law disagrees. According to Section 732.517 of the Florida Probate Code, no contest clauses that attempt to penalize interested parties to an estate from taking action are unenforceable. Florida is unique in this regard in that other states will often allow such restrictions in a will provided that they do not bar parties who have probable cause from disputing them. Here, however, such freedom is not allowed to testators. 

Part of that may be due to the fact that are, in reality, very few valid reasons to contest a will. Information shared by the financial website The Balance shows those to be: 

  • State laws were not observed in the verification and signing of a will
  • The testator lacked to mental capacity to create or amend such a document
  • Another exercised undue influence over the testator
  • One used fraud to procure a will

Proving any of the aforementioned points can be extremely difficult, which may lead some to believe that non contest clauses are unnecessary. 

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