By Kent Berk on August 27th, 2015 in
“Hi, I’m Kent Berk. I’m an attorney at the Scottsdale Arizona Law Firm of Berk Law Group where we handle probate, trust, estate, and other types of disputes here in Arizona. I want to talk to you today about no contest clauses.
No contest clauses are provisions that can be included in a will or a trust that basically say, and they can be customized to fit any situation, but typically they say that if a beneficiary contests or challenges the validity of the will or the trust, than whatever they would otherwise receive under the will or trust is revoked and they’re disinherited or is sometimes provides that the beneficiary who contests the will or the trust is deemed to have died before the person who they would be taking from.
There is an important provision in Arizona law that says that a no contest clause is not enforceable if the challenger had probable cause to contest the validity of the trust or the will. So if the beneficiary challenge is in violation of the no contest clause but they had what’s called “probable cause” to do that, even if they ultimately lose the case, they’re not disinherited.
There’s a recent case, the Shaheen case, that I wrote about on our website, that provides some important clarifications to Arizona law under no contest clauses.
First of all, if a contesting beneficiary files multiple claims, they have to establish, or the court will evaluate, whether they had probable clause for each individual claim separately.
Secondly, the court reiterated and reaffirmed that the standard for probable cause is evaluated based upon the evidence that the contesting beneficiary had at the time that the contest was filed, not after discovered evidence. Probable cause is evidence that would cause a reasonable person to believe that there’s a substantial likelihood that they would win on their contest. If a beneficiary files one of nine claims that lacks probable cause, than even if the other eight had probable cause, they’re disinherited.
The reason why is to discourage frivolous litigation and to uphold the will maker or trust makers’ intent to not allow any unwanted litigation involving the validity of the will or the trust.
If you have a questions or if you need any help in a will or trust contest including no contest clause issues, please don’t hesitate to send us an email through our website or give us a call. Thank you.” – Kent Berk